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JudgmentRepublic VS abdullahi mugambi5 min read

Republic VS abdullahi mugambi

High Court at Mombasa High Court · · Wendy Micheni


Preliminaries

  1. This Honourable Court is called upon to determine the whether the Applicant should be released on bail/bond pending the hearing and determination of this trial. The Applicant was charged with Murder contrary to section 203 as read with section 204 of the penal code Cap 63 Laws of Kenya. 
  2. The particulars of the offence being that on  the 2nd  November 2024 at MTWAPA TOWNSHIP IN KILIFI SOUTH  SUBCOUNTY WITHIN KILIFI County, HE  murdered  AN UNIDENTIFIED PERSON ‘KAZEE’
  3. On 5th September, 2024 the Applicant pleaded not guilty . The applicant is currently remanded at Shimo La Tewa Maximum Prison.

Bail Information Report

  1. The court called for a pre bail report  and one dated 19TH  December, 2024 was prepared and filed by by  MUTISYA KIOKO  a principal probation officer . It shows   the victim(s)/ complainant family were not traced for their in put or concerns concern; .
  2. The report shows that the applicant was born and raised in Meru in a single parent homestead. He later moved to mombas with a friend and was employed at Mwembe Tayari.                             He later moved to kongowea and lately to Mtwapa where he was collecting bottles .  his residence remains unknown.
  3. It would appear that the applicant did not open up to the probation officer.  He refused to divulge any contacts.  It appears that he cut links with his family back home and he even changed his religion.    The report reads that the applicant was not ready to be helped by human beings and it is only God who can help him. 

Analysis and Determination

  1. The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’). Article 49(1)(h) of the Constitution states as follows: -

“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released.”

  1. Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align the CPC with the Constitution. It provides that: -

(1) Subject to Article 49 (1) (h) of the constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all relevant circumstances and in particular -

a) the nature of seriousness of the offence;

b) the character, antecedents, associations and community ties of the accused person;

c) the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; and

d) the strength of the evidence of his having committed the office.

(2) A person who is arrested or charged with any offence shall be granted bail unless the Court is satisfied that the person-

a) has previously been granted bail and as failed to surrender to custody and that if released on bail (whether or not subject to conditions), it is likely that he would fail to surrender to custody;

b) Should be kept in custody for his own protection.

  1. The rationale behind bail or bond in Kenya is premised on the constitutional imperative under Article 50(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved.
  2. In bail or bond applications, therefore, the primary consideration must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. Ibrahim, J (as he then was) in Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that;

“The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.”

  1. The Constitution does not define the term “Compelling reasons”. But, generally a compelling argument would be something that is in accordance with the fact or some reality. In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term “compelling reasons” as follows: -

“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.”

  1. In the case of Republic v Francis Kimathi [2017] eKLR, the court held that:

“… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution.

  1. The Bail and Bond Policy Guidelines provides thus, in regard to compelling reasons:

“(a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:

a. That the accused person is likely to fail to attend court proceedings; or

b. That the accused person is likely to commit, or abet the commission of, a serious offence; or

c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or

d. That the accused person is likely to endanger the safety of victims, individuals or the public; or

e. That the accused person is likely to interfere with witnesses or evidence; or

f. That the accused person is likely to endanger national security; or

g. That it is in the public interest to detain the accused person in custody.”

  1. The purpose of bail/bond is to ensure the accused person’s attendance during trial. 
  2. In this case the accused person has no fixed abode and he declined to divulge any information about his family.  He does not have any known social ties or community that can ensure he attends court.      Accordingly he is a flight risk.
  3. For the reasons above the court denies bond for the time being. He is advised to co operate with the probation officers in future.

.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT 30th TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ……January…………………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

MR.Ngiri……………State Counsel;

…Ms Barbra AUMA……………………………………….…Applicant

    Republic VS abdullahi mugambi Republic VS abdullahi mugambi