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High CourtDismissedNot stated in the judgment text (appeal against ruling of 22.11.2019 in Kapenguria PMC Cr (SO) Case No. 11 of 2019)

Kapenguria High Court Criminal Appeal (appellant unnamed in judgment text, accused in Kapenguria PMC Cr (SO) Case No. 11 of 2019)

High Court of Kenya

5 December 2019

RSRuth N. Sitati

1,882 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

Courts can deny bail if there are compelling reasons, such as the accused being a flight risk or if their release might pressure the victim.

What this practically means

Executive summary

The appellant, accused of defilement and an alternative indecent act with a child contrary to the Sexual Offences Act in Kapenguria PMC Cr (SO) Case No. 11 of 2019, appealed against the trial magistrate's ruling of 22 November 2019 which had declined to release him on bond pending trial. Before the High Court at Kapenguria, Sitati J treated the matter as a first appeal requiring fresh evaluation of the evidence, citing Peters v Sunday Post. The court held that the Article 49(1)(h) right to bond yields to compelling reasons, which the Constitution neither defines nor prescribes as to form; such reasons may be presented by affidavit or orally, and the Criminal Procedure Bench Book and bail and bond policy guidelines list six categories including flight risk and likelihood of interfering with witnesses. The court found the appellant a flight risk, noting his unexplained absence from court for several months despite being a police officer accessible at any time, and that as a close relative of the child victim living in the same house, his release would increase the victim's fear and anxiety and expose her to pressure to opt for a settlement. The conditional bond granted by the ruling of 22 November 2019 was therefore held reasonable. The appeal was dismissed. The court ordered that the appellant be released on bond of Kshs.100,000 with one like surety only once the victim's evidence is taken, directed an early mention of the criminal case on 9 December 2019, gave a 14-day right of appeal, and remanded the appellant in custody in the interim. No costs order was made.

Key legal issues

Whether the trial court's conditional denial of bond was justified under Article 49(1)(h)

Holding

Yes; the ruling of 22.11.2019 was premised on solid ground and the conditional bond was reasonable

Reasoning

The court found the appellant a flight risk, noting his unexplained three-week delay in appearing despite being a police officer accessible at any time. It further found that as a close relative of the child victim living in the same house, his release would increase fear and anxiety in the victim and risk interference or pressure to settle, constituting compelling reasons under Article 49(1)(h).

p. 3

The meaning and form of 'compelling reasons' under Article 49(1)(h)

Holding

The Constitution does not define the phrase or prescribe its form; reasons may be in an affidavit or oral, and the Bench Book and bail and bond policy guidelines list six categories including flight risk and witness interference

Reasoning

The court noted the constitutional phrase is undefined and flexible as to form, then adopted the categories from the Criminal Procedure Bench Book and bail and bond policy guidelines, applying the flight-risk and witness-interference categories to the facts before it.

p. 2

Legal principles established

The right to bond under Article 49(1)(h) is subject to compelling reasons, which may be presented orally or by affidavit depending on the circumstances
Where the accused and victim are close relatives living in the same household, denial of bond until the victim testifies is justified to protect the victim as a witness

Court orders

1.Appeal dismissed
2.Appellant to be released on bond of Kshs.100,000/- plus one surety of a like amount as soon as the evidence of the victim is taken by the trial court
3.Criminal Case No. 11 of 2019 to be mentioned before the trial court on Monday 9.12.2019 with a view to fixing an early hearing date
4.Right of appeal within 14 days from the date of the judgment
5.Appellant remanded in custody

On appeal from: Kapenguria Principal Magistrate's Court; Cr (SO) Case No. 11 of 2019
Jurisdiction invoked: First appeal from the subordinate court's bond ruling; appellant's right under Article 49(1)(h) of the Constitution of Kenya, 2010

Key timeline

Practical implications

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Cite this brief

Caselaw, "Kapenguria High Court Criminal Appeal (appellant unnamed in judgment text, accused in Kapenguria PMC Cr (SO) Case No. 11 of 2019)", Case Analysis (2019). Not stated in the judgment text (appeal against ruling of 22.11.2019 in Kapenguria PMC Cr (SO) Case No. 11 of 2019). Source:

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