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High CourtAllowedNot stated in judgment (murder charge; bail application)

Republic v. 1st, 2nd and 3rd Accused Persons (Bail Pending Trial)

High Court of Kenya
29 May 2013
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The severity of murder charges or the death penalty cannot automatically deny an accused person their constitutional right to bail.

What this practically means

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Executive summary

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Three accused persons charged with murder contrary to section 203 as read with section 204 of the Penal Code applied for bail pending trial under Article 49 of the Constitution. The State, through the investigating officer's affidavit, opposed bail on four grounds: the strength of the prosecution's case (including an alleged 'confessionary statement' by the 2nd accused implicating the 1st accused and a person still at large), the risk of the 1st accused interfering with witnesses said to be her young children, her alleged concealment of the murder weapon in a pit latrine, and her alleged exposure to danger in a volatile situation. Pre-bail probation officers' reports on all three accused found them suitable for release on bail, and counsel for the accused submitted that the opposition rested only on suspicion addressable through bail terms. The court, per Edward M. Muriithi J, held that the strength of the prosecution's case and the maximum death sentence cannot be compelling reasons to refuse bail, since bail is constitutionally available for all offences including capital cases. It deplored the prosecution's attempt to introduce unproven evidence in bail affidavits where cross-examination was impossible, holding that such matters belong to trial. Alleged witness interference was to be met by less restrictive measures such as witness protection or children's court custody orders. Accepting the probation officers' findings, the court granted each accused own bond of Kshs 500,000 with one surety of a similar amount, on conditions restricting travel and requiring monthly attendance before the Deputy Registrar, with liberty to the prosecution to seek orders on the 1st accused's contact with minor witnesses.

Key legal issues

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01

Whether a strong prosecution case and the death penalty are compelling reasons to refuse bail

Holding

No - a good prosecution case cannot be a compelling reason, and the maximum death sentence cannot of itself support a presumption of absconding; bail is available for all offences including capital cases.

Reasoning

The court reasoned that the prosecution is expected to prefer charges only where there is sufficient evidence to sustain a conviction, so the strength of the case is inherent in every charge and cannot justify denial of bail. The death sentence being a maximum penalty does not create a presumption of flight. Bail is constitutionally available for all offences, including capital cases, and refusal requires compelling reasons under Article 49.

p. 2
02

Whether unproven evidence (a 'confessionary statement' and concealed murder weapon) may be relied on in bail affidavits

Holding

No - such matters are matters of trial evidence to be tested by cross-examination; introducing them in bail affidavits is irregular and deplored.

Reasoning

The court held that an alleged confession must be proved to have been taken in accordance with section 25A of the Evidence Act and subjected to strict accomplice-evidence scrutiny with an opportunity for the co-accused to challenge it. Similarly, the claim that the 1st accused hid the murder weapon was a matter of trial evidence to be subjected to cross-examination, not a basis for denying bail.

p. 2
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Whether alleged risk of interference with child witnesses justifies refusal of bail

Holding

No - any real danger of interference with minor witnesses should be addressed through less restrictive measures such as witness protection or children's court custody orders, and bail conditions directing the accused to stay away from witnesses.

Reasoning

The court weighed the alleged danger of interference with the 1st accused's minor children against the constitutional right to bail, holding that less restrictive means must be preferred. It noted a discrepancy in the children's ages and that no witness statements had been supplied for the alleged 8-year-old child. The remedy lies in witness protection measures, temporary custody orders from a children's court, or bail terms keeping the accused away from named witnesses.

p. 3

Legal principles established

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  • The strength of the prosecution's case cannot be a compelling reason for refusal of bail; charges should only be preferred where there is sufficient evidence to sustain a conviction.
  • The maximum sentence of death cannot of itself support a presumption that an accused will abscond; bail is available under the Constitution for all offences including capital cases.
  • Investigating officers must not introduce unproven evidence relating to the trial in affidavits responding to bail applications where cross-examination is not possible.
  • Where there is a real danger of an accused interfering with minor child witnesses, the remedy lies in witness protection measures rather than refusing the constitutional right to bail.

Court orders

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  1. 1.Accused to execute own bond of kshs 500,000/=
  2. 2.Accused to provide one (1) surety of similar amount of kshs 500,000/=
  3. 3.Accused shall not leave jurisdiction of the court without leave of the court
  4. 4.Accused to attend the Deputy Registrar every 30 days pending hearing and determination of his trial
  5. 5.As regards accused no.1, prosecution at liberty to move the court for orders relating to her access or contact with minor witnesses, as necessary
Jurisdiction invoked
Article 49 of the Constitution (right to bail pending trial)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v. 1st, 2nd and 3rd Accused Persons (Bail Pending Trial)", Case Analysis (2013). Not stated in judgment (murder charge; bail application). Source: 

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