Watoro v Republic

High Court of Kenya

14 April 1991

POPorter

1,854 words in judgment

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The bottom line

Kenya's High Court ruled that in bail decisions, the seriousness of the charge and risk of the accused fleeing can outweigh the presumption of innocence.

What this practically means

Executive summary

The applicant, charged with three counts of sedition under s 56(1)(b) as read with s 57(1)(c) of the Penal Code, applied under s 123(3) of the Criminal Procedure Code for bail pending trial after the Chief Magistrate refused bail. The State objected on the ground that the offence carried a maximum sentence of ten years, creating a likelihood of absconding. Counsel for the applicant argued that the presumption of innocence should diminish the relevance of the maximum sentence, that the publication amounted to fair comment, that a co-accused had previously been released on bail, that the applicant had no previous convictions and suffered chest pains, and that the police had breached ss 36 and 37 CPC by holding him nine days before production in court. Porter J held that the paramount consideration in bail applications is whether the accused will turn up for trial, but that the seriousness of the offence and the likely sentence is a legitimate consideration notwithstanding the presumption of innocence, provided the court does not presume guilt from the charge alone. The court declined to assess the strength of the prosecution case or the fair comment defence at the bail stage, noting oddities in the consent to prosecute but holding them insufficient. It disapproved the routine police non-compliance with s 37 CPC. Weighing all factors, the judge found a very real risk of absconding and refused bail.

Key legal issues

Relevance of presumption of innocence to bail

Holding

Presumption of innocence does not rule out consideration of offence seriousness; but guilt must not be presumed merely from the charge

Reasoning

The court held that applying the presumption in full would make remand in custody for seriousness impossible, since the court would have to assume no sentence would follow. Yet it would be wrong to decide bail on an assumption of guilt merely because the accused was charged. The presumption tempers but does not exclude consideration of likely sentence.

p. 3

Strength of prosecution case and fair comment defence

Holding

Court declined to assess the merits of the defence or prosecution case at bail stage

Reasoning

Counsel argued a fair comment defence under ss 56 and 57 Penal Code. The court held that referring to a defence implied a prima facie case could not be excluded, and that it was inappropriate on a bail application to guess the trial outcome or call and consider evidence. Oddities in the consent to prosecute were noted but insufficient to negate the prosecution case.

p. 3

Non-compliance with ss 36 and 37 CPC

Holding

Failure to follow s 37 registration requirements disapproved but not determinative

Reasoning

The applicant was held 9 days before being brought to court without compliance with ss 36 and 37. The court criticised the practice, noting it leaves a nasty taste, may cast doubt on admissions, and generates unnecessary habeas corpus applications, but the discretion on bail was exercised on the absconding risk.

p. 3

Legal principles established

The paramount consideration in bail applications is whether the accused will attend trial
Seriousness of the offence, in terms of likely sentence, is a legitimate consideration in exercising bail discretion despite the presumption of innocence
Each bail application depends on its own facts; release of one co-accused does not compel release of another

Court orders

1.Bail pending trial refused; the applicant to remain in custody pending trial

On appeal from: Chief Magistrate's Court
Jurisdiction invoked: Section 123(3) of the Criminal Procedure Code (cap 75) - bail pending trial

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (2)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Danson Mgunya & Another v Republic
15 Oct 2010followed
Peter Musya & Another v Republic
29 Sept 2010applied

Cite this brief

Caselaw, "Watoro v Republic", Case Analysis (1991). Criminal Application No 166 of 1991. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.