Please Wait. Searching ...
Republic v Omusilwa (Criminal Case E050 of 2022) [2022] KEHC 15434 (KLR) (Crim) (16 November 2022) (Ruling)
Neutral citation:
[2022] KEHC 15434 (KLR)
Republic of Kenya
Criminal Case E050 of 2022
DO Ogembo, J
November 16, 2022
Between
Republic
Prosecutor
and
Ernest Alube Omusilwa
Accused
Ruling
1.The accused Ernest Alube Omusila, has applied to this court to be released on bail. The application of the applicant is dated 25.8.2022. The prosecution has opposed the application. First, it was submitted that the accused is likely to interfere with witnesses if released on bail. That the 2 were next door neighbor and the witnesses to the same are also neighbours known to the accused, making it likely that he shall interfere with the witnesses if released. That the applicant has not shown any evidence of an alternative place of abode.
2.It was further submitted that the accused faces a serious offence and the accused is likely to abscond since he knows the strength of the prosecution’s case. In a short response, it was submitted by counsel for the applicant that the applicant has since secured an alternative place of abode in Eastleigh.
3.I have considered this application and the objection raised by the Respondent. Article 49(1)(h) of the constitution declares.
- To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
4.Article 50 of the constitution guarantees the right to fair hearing. At article 50(2)(a) every accused person has the right.
5.The right to bail is therefore available to all persons charged irrespective of the nature of the charges that they face. The right, however, is not absolute and may be denied should the prosecution prove the existence of a compelling reason ie. reasons that are strong enough as to justify the right to bail. In this case, the prosecution has submitted on 2 areas as constituting compelling reasons herein.
6.First, that the applicant is likely to interfere with prosecution witnesses. The reason given is that the said witnesses were neighbours of both the accused and the deceased and so are well known to him. The applicant has dispatched this and filed a further affidavit to show that he has secured an alternative place of abode. This court is persuaded by the submissions of the applicant that upon release, he shall relocate and stay in an alternative place of abode, and specifically Eastleigh.
7.On the 2nd ground that the accused is charged with a serious offence and that the prosecution has a strong case against the accused, it is worth noting the provision, of Article 50(2)(a), above, that the applicant (accused) enjoys the presumption of innocence. This case is yet to be heard and the court therefore is not in a position as to gauge the strength of the prosecution’s case. This ground therefore cannot, on its own, stand as a compelling reason.
8.In the circumstances, this court is not convinced that the prosecution has proved the existence of any compelling reason good enough to justify a denial of the right to bail to the accused. I accordingly dismiss the objections of the prosecution and order that the accused may be released on bail on the following terms:i.A bond of Ksh. 1 million with 1 surety of a similar amount.ii.An alternative of Ksh.100,000/= in cash bail.iii.Upon release, the applicant is ordered never to interfere with or contact any of the prosecution witnesses, either directly or indirectly till this case is determined.iv.That upon release on bail, the accused shall not stay at Kiambiu or the neighbourhood of the scene where prosecution witnesses resides. It is noted that he has proposed to stay in Eastleigh.v.He is ordered to attend court at all times as would be ordered by the court from time to time till this case is determined.It is so ordered.
D. O. OGEMBOJUDGE16TH NOVEMBER, 2022.Court:Ruling read out in court in the presence of the accused, Mr. Mutuma for the accused and Ms. Kimani for the stateD. O. OGEMBOJUDGE16TH NOVEMBER, 2022.
