[2019] KEHC 2403 (KLR)
The court found that Article 49(1)(h) of the Constitution guarantees the right to bail unless compelling reasons exist for denial. The prosecution conceded that there were no compelling reasons to oppose bail. The court, upon review of the application and the absence of opposition, determined that there were no...
Source-derived case information.
- Citation
- [2019] KEHC 2403 (KLR)
- Parties
- Respondent: Republic; Applicant: Zablon Kipkemoi Kirui; Applicant: Gilbert Cheruiyot Kemboi
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2018
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- application_allowed
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Constitutional Rights of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Zablon Kipkemoi Kirui
Applicant
Gilbert Cheruiyot Kemboi
Applicant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under Article 49 of the Constitution.
- 2 Whether there exist compelling reasons to deny bail to the accused persons.
Ratio Decidendi
The court found that Article 49(1)(h) of the Constitution guarantees the right to bail unless compelling reasons exist for denial. The prosecution conceded that there were no compelling reasons to oppose bail. The court, upon review of the application and the absence of opposition, determined that there were no compelling reasons to deny the accused persons bail. Consequently, the application for bail was allowed, and the accused were granted bail on specified terms.
Court Disposition
application_allowed
Orders
- Each accused person to be released on signing own bond of Kshs.200,000 with one surety of similar amount.
- Alternatively, each accused person to be released on payment of cash bail of Kshs.300,000.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CRIMINAL CASE NO.35 OF 2018
REPUBLIC................................................................................PROSECUTOR
VERSUS
ZABLON KIPKEMOI KIRUI...............................................1ST ACCUSED
GILBERT CHERUIYOT KEMBOI.....................................2ND ACCUSED
RULING
1. Before me is a Notice of Motion dated 5th March 2019 filed under Article 49 of the Constitution by M/s Chelule & Company Advocates on behalf of the two accused persons herein for their release on bail pending trial.
2. The application has grounds on the face of the Notice of Motion and was filed with a supporting affidavit sworn on 5th March 2019 by Zablon Kipkemoi Kirui, the 1st accused.
3. The prosecution through the Assistant Director of Public Prosecutions, Mr. Ayodo did not object to the application as they have no compelling reasons upon which to oppose the same.
4. Counsel for the accused persons Ms Cheruiyot in prosecuting the application stated that the 1st accused was a family man in Kericho County and that his clan elders were willing to provide security if released on bail. As for the 2nd accused, counsel stated that he was a minor, and unlikely to escape from this court’s jurisdiction.
5. Under Article 49 of the Constitution of Kenya 2010, every arrested person has a right to be released on bail/bond on reasonable terms unless there exist compelling reasons for the denial of bail. Article 49 (1) (h) specifically provides as follows:-
“49 (1) An arrested person has the right-
(h) to be released on bond or bail on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released.”
6. Courts have held that the primary responsibility is on the State to demonstrate the existence such compelling reasons. The State says herein that they do not have compelling reasons to justify any opposition to the grant of bail or bond. I myself find no compelling reasons for denial of bond.
7. I thus allow the application dated 5th March 2019 and order as follows:
1. Each of the two accused persons will be released on signing his own bond of Kshs.200,000/- with one surety of similar amount.
2. In the alternative, each accused person will be released on payment of cash bail of Kshs.300,000/-.
3. The accused will not interfere with prosecution witnesses.
4. The accused will each attend court on every date for mention and hearing of the case, until the case is finalized.
Dated and delivered at Kericho this 16th day of October 2019.
George Dulu
JUDGE