[2016] KEHC 1617 (KLR)
The court found that while the applicants are facing very serious charges under the Wildlife Conservation and Management Act, which attract stiff penalties and thus increase the risk of absconding, the bond terms imposed were on the higher side and could amount to a denial of bond. The court held that bond terms...
Source-derived case information.
- Citation
- [2016] KEHC 1617 (KLR)
- Parties
- Applicant: Samuel Avasirwa Masimbi; Applicant: Nyeere Mutea Joseph; Applicant: Nyaga Edward Kaburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 60 of 2016
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Bond Review Application
- Outcome
- bond terms reviewed and reduced
- Judges
- RPV Wendoh
- Legal Topics
- Bail and Bond, Wildlife Offences, Judicial Discretion, Review of Bond Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Avasirwa Masimbi
Applicant
Nyeere Mutea Joseph
Applicant
Nyaga Edward Kaburu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Bond Review Application
Legal Issues
- 1 Whether the bond terms imposed on the applicants are excessive and amount to a denial of bond.
- 2 Whether the bond terms should be reviewed to ensure they are reasonable given the seriousness of the charges and the applicants' circumstances.
Ratio Decidendi
The court found that while the applicants are facing very serious charges under the Wildlife Conservation and Management Act, which attract stiff penalties and thus increase the risk of absconding, the bond terms imposed were on the higher side and could amount to a denial of bond. The court held that bond terms must balance the need to secure the accused's attendance with the principle that an accused is presumed innocent and should not be subjected to punitive conditions. Accordingly, the court exercised its discretion to review the bond terms downwards to ensure they are reasonable and not excessive, thereby upholding the applicants' right to bond while still addressing the seriousness...
Court Disposition
bond terms reviewed and reduced
Orders
- Each accused may be released on bond of KShs.2,000,000 with one surety of like sum or cash bail of KShs.750,000 each.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION NO. 60 OF 2016
SAMUEL AVASIRWA MASIMBI ..................... 1st APPLICANT
NYEERE MUTEA JOSEPH ............................. 2ND APPLICANT
NYAGA EDWARD KABURU ........................... 3RD APPLICANT
VERSUS
REPUBLIC ............................................................RESPONDENT
RULING
Samuel Avasirwa Masimbi, Nyeere Mutea JosephandNyaga Edward Kaburu faced two charges of being in possession of Wildlife Trophies contrary to Section 95 of the Wildlife Conservation and Management Act, 203and dealing in wildlife trophies contrary to Section 84 as read with Section 92 of the same Act.
They were granted bond of KShs.10 million with one surety of like sum or cash bail of KShs.5 million each. They have approached this court for review of the said bond terms which they claim are too excessive and that they amount to a denial of bond.
The affidavit in support of the application has been sworn by the 2nd accused, Nyeere Mutea on behalf of the other applicants, who deponed that they have tried to get sureties or raise the cash bail but have been unable; that efforts to have the terms reduced by the trial court have been fruitless. They promise to attend court as will be required of them.
In an application for bond, the court considers inter alia whether the accused will turn up for the trial, the seriousness of the charge and likely sentence; and whether the accused will interfere with witnesses.
No doubt, the accused are facing very serious charges which involve protection of Kenya’s wildlife which is threatened with extinction. The new laws enacted in 2013, have provided very stiff penalties. For example, a conviction under Section 84 as read with Section 92 of the Wildlife Conservation and Management Act attracts a fine of not less than Kshs. 20 million or imprisonment for life or to both fine and imprisonment. Because of the stiff penalties, the likelihood of absconding is high and that is why the court would call for more severe bond terms to ensure that the accused do not take it lightly but must attend court. It is not a sentence because the accused are still deemed to be innocent. The terms should also not be so harsh or excessive as to amount a denial of the bond. They should be reasonable considering the circumstances of each case.
I have considered the terms granted. It is my view that the bond terms are on the higher side and I hereby review the terms downwards as follows: Each accused may be released on bond of KShs.2,000,000/= with one surety of like sum or cash bail of Kshs.750. 000/= each.
DATED, SIGNED AND DELIVERED THIS 14TH DAY OF NOVEMBER, 2016.
R.P.V. WENDOH
JUDGE
14/11/2016
PRESENT
Mr. Mulochi for State
Mr. Wamache Holding Brief for Mr. Mutegi for the Accused
Ibrahim/Peninah, Court Assistants
All 3 Present, Applicants