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High CourtOther· [2020] KEHC 1261 (KLR)

Republic v Accused (Murder)

High Court of Kenya
4 November 2020
RLR. Lagat-Korir
411 words in judgment
View original judgment Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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The court can deny bail even if you have a constitutional right to it, if the supporting legal reports are incomplete.

What this practically means

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Executive summary

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The Accused faced a charge of murder contrary to section 203 as read with section 204 of the Penal Code, arising from the death of Kipchalo Arap Koske alias Richard Kipchalo Cheborigei on 2nd April 2020 at Kiptulwo village, Bomet County. He took plea before Ongeri J on 30th June 2020 and denied the charge, whereupon his counsel sought bond and the prosecution requested a pre-bail report. When the matter came before Lagat-Korir J on 28th October 2020, the defence renewed the bond application, submitting that the Accused was a Bomet resident and that the pre-bail report was favourable. Prosecution counsel, while not opposing bond in principle, said he had not seen the probation report and would have no objection if the report was favourable. The court held that the Accused has a constitutional right to bail or bond pending trial under Article 49(1)(h) of the Constitution, limited only by compelling reasons not to grant bail, which it is the practice for the prosecution to place before the court, while the court retains discretion in each case. However, the probation report did not contain a victim impact statement, did not disclose the circumstances of the alleged killing, and did not provide a comprehensive social inquiry into the Accused. The court therefore found the report unhelpful to the exercise of its discretion and declined to grant bond, ordering that the Accused remain in custody pending trial or until further orders of the court.

Key legal issues

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01

Whether bond should be granted to an accused facing a murder charge

Holding

Bond was refused because the pre-bail probation report was not comprehensive and did not assist the court in exercising its discretion.

Reasoning

The court reaffirmed the constitutional right to bail under Article 49(1)(h), noting that compelling reasons against bail should ordinarily be brought by the prosecution, but that the court retains discretion considering the circumstances of each case. Here, the probation report failed to give a victim impact statement, the circumstances of the alleged killing, or a comprehensive social inquiry, so the court was disinclined to grant bond.

p. 2

Legal principles established

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  • An accused person has a constitutional right to bail pending trial, limited only by compelling reasons not to grant bail, which the prosecution should ordinarily place before the court.

Court orders

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  1. 1.The Accused is denied bond and shall remain in custody pending trial or until further orders of the court

Authorities

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Legislation

  • Penal Code Cap 63 Laws of Kenyasections 203 and 204
  • Constitution of KenyaArticle 49(1)(h)
Jurisdiction invoked
Article 49(1)(h) of the Constitution; murder charge under section 203 as read with section 204 of the Penal Code Cap 63

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 Accused (Murder)", Case Analysis (2020). . Source:

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