[2021] KEHC 2166 (KLR)
The court found that the applicant's constitutional right to bail is non-derogable unless compelling reasons are shown. The prosecution did not present any compelling reasons to deny bail. The Pre-Bail Report concluded that the applicant is not a flight risk, has a fixed abode, and enjoys support from his immediate...
Source-derived case information.
- Citation
- [2021] KEHC 2166 (KLR)
- Parties
- Applicant: Stephen Mwangi Mwaura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 22 of 2020
- Procedural Posture
- Bail Application / Ruling on Bail Application
- Outcome
- application for bail granted
- Legal Topics
- Bail Application, Murder Charge, Compelling Reasons, Pre Bail Report, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mwangi Mwaura
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Application
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny the applicant bail as required under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that the applicant's constitutional right to bail is non-derogable unless compelling reasons are shown. The prosecution did not present any compelling reasons to deny bail. The Pre-Bail Report concluded that the applicant is not a flight risk, has a fixed abode, and enjoys support from his immediate family and community. The concerns raised by the deceased's family, while noted, were not substantiated by evidence sufficient to override the applicant's right to bail. The court emphasized that the paramount consideration is the assurance of the applicant's attendance at trial, which was sufficiently addressed by the proposed surety and security. Accordingly, the application...
Court Disposition
application for bail granted
Orders
- The accused is released on a bond of Kshs 500,000 with one surety of a similar amount.
- The surety must be Gerrison Mwaura, the brother to the accused, who shall deposit his own title deed to be assessed by the Hon. Deputy Registrar.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
CRIMINAL CASE NO. 22 OF 2020
STEPHEN MWANGI MWAURA......................................................APPLICANT
VERSUS
REPUBLIC.......................................................................................RESPONDENT
RULING
1. The accused person who is the Applicant herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that of the 19th day of December, 2015 at Kitiri location in Nyandarua South Sub-County within Nyandarua County, unlawfully killed Purity Waithera Mwangi.
2. The accused is represented by learned Counsel, Mr. Gachiengo who made an oral application that the accused be released on bail or bond consequent which the court ordered that a pre-bail report be filed. The learned Prosecutor, Ms. Maingi had no objection to the release of the accused person on bail/bond subject to the recommendations in the Pre-bail Report.
3. Before stating the content of the Pre-Bail Report, it is paramount that I underscore that the right of an arrested person under Article 49 (1)(h) of the Constitutionto be released on bail is non-derogable. The Article states that an arrested person has the right to be released on bond/bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released.
4. Case law has variously settled what constitutes compelling reasons to include the likelihood of an accused person to abscond, the seriousness of the offence and the attendant sentence, the security of the accused, the likelihood to interfere with prosecution witness, the antecedence of the accused and the interest of justice. (See Fadweck Mvahe v The Republic, MSCA Criminal Appeal No. 25 of 2005).
5. It must however be borne in mind that the onus lies with the prosecution to demonstrate the existence of the compelling reasons. In this case, none has been tendered before the court.
6. Further, the court has had a look at the Probation Officer’s Report dated 16th August, 2021 filed by Joel Kamau, Officer In-Charge Probation Office, Naivasha Sub-County. He was able to interview the relatives of the deceased who were opposed to the accused being released on bail citing amongst other reasons that the accused was a flight risk having worked outside the country for a long time, that he is likely to interfere with prosecution witnesses, that they felt insecure having even recorded statements at Kasarani Police Station, that the suspect’s son had had attempted kidnap incidents and in any event, this child is a key witness against the accused.
7. To the contrary, the accused family members spoke positively of him stating that he was a senior citizen having retired from the military both locally and internationally. They promised to ensure that he attends court at all times. The views of the community were reflected by respectable elders and the Chief. They described the accused person as peace loving citizen though reserved. The Chief was of the view that he had very low chances of absconding and was therefore not a danger if he is released on bond.
8. The conclusion made by the Probation Officer is that the accused is not a flight risk on account that, apart from being a senior citizen, he has a fixed abode. Furthermore, his immediate family and the community moots for his release. That in any event, his brother one Gerrison Mwaura is willing to deposit a title deed as security in view of his release.
9. I have considered the case and more so the information borne in the Pre-Bail Report. The paramount consideration for release of an accused on bail/bond is the assurance of his attendance in court once granted the bail.
10. The circumstances of this case demonstrate that there is entirely no reason advanced to compel the court to deny the accused bail/bond. It has been demonstrated that he is not a flight risk. Of course, the family members of the deceased have their fears. However, it is the duty of the court to ensure that the constitutional right of an accused person are jealously guarded.
11. Consequently, the application for release of the accused on bond must succeed. I order that the accused be released on a bond of Kshs 500,000/= with one surety of a similar amount. The surety must be Gerrison Mwaura, the brother to the accused person who shall deposit his own title deed and shall be assessed by the Hon. Deputy Registrar of this court. In the alternative, the accused may deposit a cash bail of Kshs 500,000/=.
12. It is so ordered.
DATED AND DELIVERED AT NAIVASHA THIS 11TH DAY OF NOVEMBER, 2021.
G. W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Mr. Gachiengo for the Applicant
2. Ms. Maingi for the Respondent