Patrick Kamau Ng’ang’a & Another v Republic

High Court of Kenya

18 December 2020

MKMary Kasango

384 words in judgment

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The bottom line

Changing circumstances, such as moving away from witnesses, can lead the court to review and overturn a previous bail denial.

What this practically means

Executive summary

Patrick Kamau Ng’ang’a and Martin Kamande Nyoike, facing a charge of murder and awaiting trial, had their bail application declined by the High Court at Kiambu in a ruling dated 17th November 2020. By a Notice of Motion dated 19th November 2020, they sought review of that ruling on the grounds that their families had vacated their Zimmerman residence, where the prosecution's witnesses resided, and that the pre-bail report was favourable to their release. The State, through Mr. Kasyoka, did not oppose the application; the investigating officer, Elpus Ngetich of DCI Kasarani, confirmed the accused had undertaken to move their residence away from the prosecution's witnesses, and that the families of the victim and the accused were discussing reconciliation. Justice Mary Kasango, delivering a virtual ruling on 18th December 2020 during the Covid-19 pandemic, held that Article 49(1)(h) of the Constitution affords an accused the right to be released on bond or bail unless there are compelling reasons not to, and that no compelling reasons existed to continue denying bail. The court reviewed and set aside its ruling of 17th November 2020 and released both accused pending trial on bond of KSh. 500,000 each with two sureties of similar amounts, on conditions that they do not interfere with prosecution witnesses and reside outside the Kasarani area during the trial. No costs order was made.

Key legal issues

Whether compelling reasons existed to continue denying bail after changed circumstances

Holding

The court found no compelling reasons remained to deny bail, given the accused had moved residence away from the prosecution's witnesses and the pre-bail report was favourable.

Reasoning

The court considered the parties' submissions, the state's non-opposition after consultation with the investigating officer, the accused's undertaking to reside away from the witnesses, and the favourable pre-bail report. It concluded the constitutional presumption in favour of bail under Article 49(1)(h) applied and no compelling reasons persisted.

p. 1

Legal principles established

An accused person has a constitutional right to be released on bond or bail unless there are compelling reasons not to be released.

Court orders

1.The Ruling of this court dated 17th November 2020 is hereby reviewed and set aside.
2.Both Accused are hereby released pending their trial on bond of KSh. 500,000 each with two sureties of similar amounts.
3.Both Accused shall not interfere with the prosecution’s witnesses and will, during the subsistence of their trial reside outside the Kasarani area.

Jurisdiction invoked: Article 49(1)(h) of the Constitution of Kenya, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Patrick Kamau Ng’ang’a & Another v Republic", Case Analysis (2020). . Source:

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