REPUBLIC OF KENYA High Court at Machakos Criminal Case 6 of 2009 REPUBLIC …………………………………………..………………. PROSECUTOR VERSUS DENNIS NTHENGE CHARLES ……........……………………………..… ACCUSED RULING After three prosecution witnesses finished testifying Mr Mung’ata, counsel for the accused filed an application by way of a Notice of Motion for bail dated 17th August 2012. The application was brought under Article 49(h) of the Constitution of Kenya. The grounds of the application are that the applicant was employed and a law abiding citizen; that he had a permanent place of abode, and was therefore not a flight risk; that he was of good moral standing; that his release would enable him adequately prepare for his defence; that the interests of justice required that the orders sought be granted. The learned State Counsel Mr Mwenda did not object to the application. Counsel submitted that only three witnesses, one being a doctor and one the investigating officer, had not testified. This is an application for bail pending trial. Under Article 49(i) (h) of the Kenya Constitution 2010 every accused person is entitled to bail. It does not matter if the offence is a capital offence. Bail is meant to secure the attendance of an accused person for the trial. The release on bail for capital offenders in Kenya is a new development that came into being with the Constitution which was promulgated in August 2010. As a result, courts have been developing parameters for the releasing on bail of accused persons in such situations. The parameters that have been taken by courts in such applications include the following:(a) The likelihood that the accused person will appear for trial. (b) The likelihood that the accused person will interfere with witnesses or investigations. (c) The severity of the sentence likely to be imposed in the event of a conviction. (d) The likelihood of commission of more offences or whether the accused person is a risk to the community. (e) The safety or security of the accused person.
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In our present case, the main prosecution witnesses have testified. I do not see any possibility of interference with witnesses. The State also does not oppose the grant of bail. In addition, two of the three remaining witnesses are a doctor and a police officer. In my view also, the accused is not likely to commit further offences. I will grant him bail. In the result, I allow the application and order that the accused be released upon his paying cash bail of Kshs.100,000/= or his signing bond for Kshs.200,000/= with one surety of similar amount. He will attend all mentions and hearings of the case. Dated and delivered at Machakos this 5th day of December 2012. George Dulu Judge In presence of: N/A for State Mr Kasyoka holding brief for Mr Mung’ata for Accused Accused present Mutinda – Court clerk
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