REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BOMET CRIMINAL CASE NO.2 OF 2019 REPUBLIC..............................................................................PROSECUTOR VERSUS AMBROSE KIPROTICH CHEPKWONY............................1ST ACCUSED PETER KIPKORIR BII........................................................2 ND ACCUSED RULING 1. This is a part heard case which was mentioned at Bomet High Court on 3 rd December 2019 for the State to apply for consolidation with Criminal Case no.22 of 2019. The issue of consolidation does not appear to have been dealt with yet. However, on the mention date above, counsel for the two accused, Mr. Koske asked that his clients be released on bail. 2. Mr. Muriithi for the State said that he did not have his file and opposed release on bail and relied on an affidavit sworn by the mother of the deceased Winny Chelule on 2 nd December 2019 which opposed bail. I also note that the same, Winny Chelule had previously filed an affidavit in this same case in opposition to release of the two accused persons on bail dated 6 th March 2019. 3. I also note that the Probation Officer, Ezekiel Lagat filed pre-bail reports on each of the two accused persons dated 26 th March 2019 in which it was indicated that the deceased’s family and community environment was hostile. I note that though the case was mentioned on 3 rd December 2019 also to confirm the filing of a fresh pre-bail reports, such reports were not filed. 4. Under Article 49 (i) (h) of the Constitution of Kenya 2010, bail pending trial is a constitutional right and can only be denied very limited reasons. The Article provides as follows- “49 (1) An arrested person has the right(h) to be released on bond or bail, on reasonable conditions, pending charge or trial, unless there are compelling reasons not to be released.” 5. The prosecution or State has the primary obligation to demonstrate to the court the compelling reasons for denial of bail. However, even in the absence of such demonstration by the State, this court as a court of justice cannot be blind to the reality on the ground especially the wellbeing and safety of the accused persons. 6. In the present case, the information on record especially from the Probation Officer is that the lives of the two accused persons herein might be at risk if released on bail. Unless therefore, I am assured of a changed situation, this court cannot exercise its constitutional powers to release the accused on bail, because that action might endanger their lives. 7. I thus decline to release the two accused persons herein on bail presently. However, the request for release on bail of the two accused persons can be raised in court at any time hereafter, if the situation on the ground has changed. Dated and delivered at Bomet this 2nd March 2020. George Dulu JUDGE
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