[2021] KEHC 5507 (KLR)
The High Court found that the trial court erred in imposing both a surety and an additional cash bail as a condition for release, as there were no compelling reasons or evidence to justify such punitive terms. The prosecution failed to demonstrate any real risk of interference with witnesses, threat to public order,...
Source-derived case information.
- Citation
- [2021] KEHC 5507 (KLR)
- Parties
- Applicant: Vincent Lusige; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E055 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Bond Terms Review
- Outcome
- bond terms reviewed and set aside in part
- Legal Topics
- Bail and Bond, Compelling Reasons, Presumption of Innocence, Witness Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Lusige
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Bond Terms Review
Legal Issues
- 1 Whether the bond and cash bail terms imposed by the trial court were reasonable and justifiable.
- 2 Whether there were compelling reasons to deny the accused persons bond or impose punitive conditions.
- 3 Whether the requirement to execute a bond to maintain peace is lawful.
Ratio Decidendi
The High Court found that the trial court erred in imposing both a surety and an additional cash bail as a condition for release, as there were no compelling reasons or evidence to justify such punitive terms. The prosecution failed to demonstrate any real risk of interference with witnesses, threat to public order, or likelihood of absconding. The requirement to execute a bond to maintain peace was also found to be unlawful, as it has been declared unconstitutional. The court emphasized that bond terms should not be used to keep accused persons in custody during trial and must respect the constitutional presumption of innocence. Consequently, the bond terms were reviewed to a bond of...
Court Disposition
bond terms reviewed and set aside in part
Orders
- Bond terms reviewed to bond of Kshs. 500,000 with one surety each or cash bail of Kshs. 200,000 each.
- Requirement to execute bond to maintain peace pending hearing and determination of the case is set aside as unlawful.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CRIMINAL APPLICATION NO. E055 OF 2021
VINCENT LUSIGE..............................APPLICANT
VERSUS
REPUBLIC......................................RESPONDENT
(An appeal from the judgment of Hon. Y.A Shikanda, Principal Magistrate, delivered on 28th May 2021 in Chief Magistrate’
Court at Shanzu Criminal Case No. E649 of 2021).
RULING
1. Hon. Y.A Shikanda, PM in a very well reasoned ruling where the prosecution objected to bond stated “I do not feel compelled to deny the accused persons bond or bail. Prosecution had not proved that accused persons were habitual offenders; that they were a part of a criminal gang; that they would commit further offences on that they had no fixed abode. He also found that the prosecution did not allude to any instances of public chaos following the arrest of the accused persons and in his opinion it was not enough for the investigating officer to swear an affidavit containing allegations against the accused persons.
2. In regard to interference with witnesses he relied in the holding of Korir J, in R. v. Dwight Sagray & 4 others [2013} eKLR and a holding of Gikonyo J in Republic v. Joktan Manyende & 2 others [2012] eKLR to say that it was wrong to rely on medical report and statements of witnesses who had not testified to support allegations of interference with witnesses because there was no evidence that accused persons tried to contact the prospective witnesses after being charged. He said the fear of an apprehension that accused persons if released are likely to harm the witnesses should be real and not imagined. It should be based on tangible facts and not mere assumption.
3. Hon. Y.A Shikanda went ahead to find and rightly so that denial of bond should be a last resort since steps can be taken to protect witnesses under Victim Protection Act to ensure the alleged victim is protected and the court to impose conditions for release of accused persons on bon to secure their attendance.
4. Having found that there was no compelling reasons to warrant accused persons being denied bond I do find that the verdict to grant bond with surety and an additional cash bail of Kshs. 200,000/= is prejudicial and punitive and therefore not reasonable and justifiable. It has not been shown how the additional cash bail will make the accused persons not to maintain public peace and order. In my view the bond terms are meant to ensure accused persons remain in custody during trial and goes against the spirit and grain of the constitutional provision that the accused person should be presumed innocent until proven guilty. The bond terms are therefore reviewed to bond of Kshs. 500,000/= with one surety each and in the alternative cash bail of Kshs. 200,000/= each. The requirement to execute bond to maintain peace pending hearing and determination of the case is also not lawful as the law in regard to bond to keep peace has since been declared unconstitutional.
5. The appellants are hereby required to ensure that they do not interfere with witnesses and to attend court as and when required during their trial in the lower court.
HON. LADY JUSTICE A. ONG’INJO
JUDGE
17. 6.2021
Before Hon. Adwera Onginjo – J
Ogwel – Court assistant
Ms. Mwanyika Adv. Watching brief for complainant
Ms. Auka Adv. For Appellants
Ms. Karanja for Respondent
COURT
Ruling delivered, dated and signed in court. Copy of ruling to be supplied to
parties upon payment of copying charges.
HON. LADY JUSTICE A. ONG’INJO
JUDGE