[2016] KEHC 7444 (KLR)
The court found that the prosecution failed to provide compelling reasons to deny the applicant bail. The seriousness of the offence, without more, is not a sufficient ground to deny bail under Article 49 of the Constitution. The prosecution did not specify which witnesses might be intimidated, and the applicant's...
Source-derived case information.
- Citation
- [2016] KEHC 7444 (KLR)
- Parties
- Applicant: William Kamaru Thotho; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 114 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- application for bond allowed
- Judges
- J Wakiaga
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Witness Interference, Absconding Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kamaru Thotho
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the applicant should be granted bail pending trial for a charge of murder.
- 2 Whether the prosecution has provided compelling reasons to deny bail as required by Article 49 of the Constitution.
- 3 Whether the risk of interference with witnesses or absconding justifies denial of bail.
Ratio Decidendi
The court found that the prosecution failed to provide compelling reasons to deny the applicant bail. The seriousness of the offence, without more, is not a sufficient ground to deny bail under Article 49 of the Constitution. The prosecution did not specify which witnesses might be intimidated, and the applicant's voluntary surrender to the Area Chief indicated a willingness to comply with the legal process. The court considered the pre-bail report and the nature of the charge but concluded that the applicant's constitutional right to bail should not be curtailed in the absence of substantiated compelling reasons. Accordingly, the application for bond was allowed, subject to specified...
Court Disposition
application for bond allowed
Orders
- The accused is released on bond of Kshs.500,000 with two sureties of like amount.
- Alternatively, cash bail of Kshs.200,000 and bond of Kshs.50,000 with two sureties of similar amount.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL CASE NO. 114 OF 2015
WILLIAM KAMARU THOTHO …….…………………………………….APPLICANT
VERSUS
REPUBLIC ……………………………………………………………RESPONDENT
RULING
The applicant WILLIAM KAMARU THOTHO faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars of which were that on the night of 9th December, 2015 at Kinoo Kishagi in Kikuyu Sub county within Kiambu County murdered ROSE MUNALA to which he pleaded not guilty.
In exercise of his Constitutional right under Article 49 of the Constitution of Kenya 2010 the same applied to be released on bond pending trial and in opposition to the said application the State through PC KEN MWENGE filed a replying affidavit in which it was deponed that the accused does not qualify to be admitted on bond because the prosecution has strong and irrefutable evidence pointing to his guilt having been the last person with the deceased before she met her death.
It was deponed that the applicant had been charged with a very serious offence of murder and temptation to abscond was real. It was further deponed that there was a risk of the same intimidating prosecution witnesses who are known to the accused.
On behalf of the accused it was submitted that the State had not given any compelling reason to enable the court deny the accused his Constitutional rights to bond. It was submitted that the accused submitted himself to the Area Chief and was willing to participate fully in the criminal process.
In compliance with the requirements of Bail and Bond Policy Guidelines the court ordered for a pre-bail report in which it is stated that the family of the victim were opposed to the accused being released on bond as he is likely to run away or interfere with evidence.
In support of the application here the defence submitted the following authorities:-
HIGH COURT OF KENYA AT MACHAKOS CRIMINAL CASE NO. 44 OF 2015 where Justice Muriithi discounted the contention that the accused was likely to interfere with witnesses since the provisions of WITNESS PROTECTION ACT 2006 can cure the same.
TIMOTHY MWITI MWANGI v REPUBLIC HIGH COURT OF KENYA AT NYERI CRIMINAL CASE NO. 12 OF 2013 where I considered the grounds for grant of bail.
In the case before the court, the only grounds advanced by the State to deny the accused his Constitutional rights are:-
Likelihood of interference with witnesses.
The possibility of the accused absconding.
The severity of the offence.
Article 49 now grants bail in all offences and therefore the seriousness of the offence without further consideration cannot be a ground to deny an accused person bail. The prosecution has not given the names of the witnesses which are alleged might be intimidated by the accused person and taking into account the fact that the accused presented himself to the Area Chief as submitted by his advocate Mr. Njoroge, I find that the state has failed to give any compelling reasons to deny the accused person bond and it would therefore be unfair for this court to deny the same his Constitutional Right.
Having taken into account the pre-bail report and the fact that the accused person faces the charge of murder I would allow the application for bond and order that the accused be released on bond pending trial on the following terms:-
Bond of Kshs.500,000 with two-like sureties of like amount.
In the alternative case bail of Kshs.200,000/- and bond of Kshs.50,000/- with two sureties of similar amount.
During the period of this trial the accused person to report to Chief of KINOO LOCATION of Kiambu County once after every 30 days on the last Thursday of each month and to the Deputy Registrar of this court once after every 90 days at dates to be set by the said Deputy Registrar while approving bail terms.
DATED, SIGNED and DELIVERED at Nairobi this 8th day of March, 2016
…………………………………
J. WAKIAGA
JUDGE
In the presence of:-
Mr. Magoma for the state
Mr. Njoroge for the accused
Accused present
Tabitha court clerk