[2012] KEHC 1768 (KLR)
The court found that there was no evidence presented to demonstrate that the applicants would not comply with bond terms or that they posed a flight risk. The trial magistrate's decision to deny bond was based on the seriousness of the offence and a lack of assurance from the defence, but did not cite any compelling...
Source-derived case information.
- Citation
- [2012] KEHC 1768 (KLR)
- Parties
- Applicant: Samuel Ng'ang'a Ng'ethe; Applicant: Peter Ng'ang'a Wanjuhi; Applicant: Oliver Karongo Wanjuhi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 432 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Vary/set Aside Magistrate's Bond Decision
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Bail and Bond, Robbery With Violence, Presumption of Innocence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ng'ang'a Ng'ethe
Applicant
Peter Ng'ang'a Wanjuhi
Applicant
Oliver Karongo Wanjuhi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Vary/set Aside Magistrate's Bond Decision
Legal Issues
- 1 Whether the applicants should be released on bond pending trial for the offence of robbery with violence.
- 2 Whether there were compelling reasons to deny the applicants bond under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that there was no evidence presented to demonstrate that the applicants would not comply with bond terms or that they posed a flight risk. The trial magistrate's decision to deny bond was based on the seriousness of the offence and a lack of assurance from the defence, but did not cite any compelling reasons as required by Article 49(1)(h) of the Constitution. The High Court held that the right to bail can only be limited by compelling reasons, which were not established in this case. Therefore, the applicants were entitled to be released on bond or cash bail with appropriate sureties.
Court Disposition
application allowed
Orders
- Each applicant shall be released on bond of Kshs. 200,000 with one surety of equal sum or payment of Kshs. 50,000 cash bail.
- The sureties must be approved by the Deputy Registrar.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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SAMUEL NG’ANG’A NG’ETHE ………..……………………1ST APPLICANT
PETER NG’ANG’A WANJUHI ………..……………………2ND APPLICANT
OLIVER KARONGO WANJUHI ………...…………………3RD APPLICANT
VERSUS
REPUBLIC …………………………………………………….RESPONDENT
RULING
The three applicants are facing a charge of robbery with violence contrary to Section 295 as read with Section 296 (2) of the Penal Code. There is case is part heard before the Principal Magistrate at Kiambu. This is an application to vary and or set aside the ruling of the Principal Magistrate delivered on 14th June, 2012 and order that the applicants be released on bond.
The applicants first appeared in court on 19th December, 2011 in which they denied the offence (allegedly) of assault causing actual bodily harm and were each released on bond of Kshs. 50,000/= and in the alternative cash bail of Kshs. 25,000/=. Subsequently, the charge was substituted with that of robbery with violence and the learned trial magistrate is recorded to have said as follows,
“Owing to substitution of the charges the accused persons shall now be remanded in custody pending the hearing and final determination of the case or further orders. Cash bail to be refunded to depositors”.
On a subsequent date, their learned counsel asked for the applicants to be released on reasonable bond terms which was opposed by the prosecutor on the basis that the offence was serious and that there was fear they may abscond. The learned trial magistrate subsequently delivered a ruling on 14th June, 2012 where he said as follows,
“I have considered the application by the defence counsel for the release of the accused persons on bond and the reply by the prosecution. I am in agreement with the prosecution that it was incumbent upon the defence counsel to convince the court that the accused persons will abide by the bond terms despite the gravity of the offences they are facing. The defence counsel only asked the court to release them on bond without saying more. There can be no guarantee that they will turn up for trial. I therefore decline to release them on bond.”
With profound respect, there was no evidence whatsoever that the applicants herein were not intent to abide by any terms set by the court. There is also no evidence that if granted bond they will not turn up for the trial. The innocence of the applicants must be presumed until proven guilty.
The right reserved under Article 49 (1) (h) is only to be denied if there are compelling reasons to that effect. With respect, I have not been shown any compelling reasons to deny the applicants the said rights. Accordingly, this application succeeds. Each applicant shall be released on bond of Kshs. 200,000/= with one surety of equal sum or payment of Kshs. 50,000/= cash bail. The sureties must be approved by the Deputy Registrar.
Orders accordingly
Dated, signed and delivered at Nairobi this 27th day of September, 2012.
A.MBOGHOLI MSAGHA
JUDGE