[2014] KEHC 354 (KLR)
The court denied bond to the accused because the social assessment report was not favourable, indicating that tempers in the community were still high and the accused's safety could not be guaranteed if released. The state did not file an affidavit in reply, but the court relied on the social assessment report to...
Source-derived case information.
- Citation
- [2014] KEHC 354 (KLR)
- Parties
- Applicant: Shem Atandi Nyakina; Respondent: State
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 49 of 2014
- Procedural Posture
- Criminal Murder Case / Ruling on Bond Application Pending Trial
- Outcome
- bond denied
- Legal Topics
- Bail and Bond, Compelling Reasons, Pretrial Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shem Atandi Nyakina
Applicant
State
Respondent
Procedural Posture
Criminal Murder Case / Ruling on Bond Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to be released on bond pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the accused bond in a murder case.
Ratio Decidendi
The court denied bond to the accused because the social assessment report was not favourable, indicating that tempers in the community were still high and the accused's safety could not be guaranteed if released. The state did not file an affidavit in reply, but the court relied on the social assessment report to find that compelling reasons existed to deny bond at this stage. The court left open the possibility for a later application if circumstances change or if the state files a reply affidavit addressing compelling reasons for or against bond.
Court Disposition
bond denied
Orders
- Bond is hereby denied to the accused.
- A later application for bond may be made if circumstances change or upon filing of a reply affidavit by the state.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL (MURDER) CASE NO. 49 OF 2014
STATE………………………………………………………..PROSECUTOR
VERSUS
SHEM ATANDI NYAKINA…….……….…………………….......ACCUSED
RULING
1. The accused herein, Shem Atandi Nyakina, is charged with murder contrary to Section 203 as read with section 204 of the Penal Code. It is alleged that he murdered Silvanus Omboga Makunga on the 5th day of April, 2014 at Bogetacho village within Kisii Sub-District in Kisii County in the Republic of Kenya. He denied the charge. He now wants this honourable court to release him on bond pending the hearing and determination for his case.
2. This application is brought under article 49(1)(h). Under that article an accused has a right to be released on bond or bail, on reasonable conditions pending a trial unless there are compelling reasons not to be released. The state has a duty to show the court that there are compelling reasons why the accused in this case cannot be released on bond.
3. In this case the state they have not filed affidavit in reply thereof. The purpose of granting bail is to secure the attendance of the accused in court from the safety of his own home environment. The social assessment report is not favourable to the Accused. The tempers are still very high and they cannot guarantee his safety.
4. Accordingly, bond is hereby denied. Later application may be made, at the time when the court expects the state to have also filed reply affidavit to the bond application giving compelling reasons why the bond should be refused or having no objection to bond being given to the Accused.
5. In these reason the bond is hereby refused.
6. It is so ordered.
Ruling dated and delivered at Kisii this 21st day of October, 2014.
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Mageto holding brief for Ondari for the applicant
Otieno for the state.
Edwin Mongare Court Clerk.