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|Case Number:||Criminal Case 54 of 2008|
|Parties:||REPUBLIC v GODFREY OKEMBA OLU|
|Date Delivered:||26 Nov 2010|
|Court:||High Court at Kisumu|
|Citation:||REPUBLIC v GODFREY OKEMBA OLU  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
R U L I N G
At time the accused was charged the offence was not bailable. The position has since the passage of the new Constitution become obsolete and inapplicable in law. The provision of the new Constitution is what gave rise to the application made by the accused person through Mr. P.J.O. Otieno holding brief for the accused counsel Mr. Yogo the accused seeks for bail pending trial.
On his part learned Assistant Deputy Director of Prosecution Mr. Gumo objected to the application stating that the accused has not demonstrated any compelling reason why he should be given bail that the offence facing the accused is heinous and serious such that the court should exercise its discretion with caution. He referred the court to Mvahe Versus Republic: Miscellaneous Criminal Appeal No.25 of 2005 – A Malawian case.
Article 49)1)(h) of the current Constitution provides as follows:-
The above provision of the new Constitution does not distinguish a capital offence from the others. All accused persons are now admissible to bail unless there are compelling reasons not to do so. The court has jurisdiction and discretion to consider a bail application for an accused person charged with a capital offence such as murder and to deny the same only if there are compelling reasons as the right is not absolute. This court held else where in Kisumu High Court Murder Case No.38 Republic versus Caleb Odhiambo Okumu of 2010 that the court must of necessity consider certain factors in exercising its discretion in an application such as the one before court. The factors for consideration are:
(2) The risk and likelihood of the accused to interfere with the witnesses or tamper with evidence;
(4) The risk the accused person is likely to face if he returns to his village/home;
(5) The gravity of the offence and likely punishment to be imposed.
In his submissions the learned State Counsel did not allude to the likelihood of interference with witnesses or the evidence or even commission of another crime by the accused. The court has no reasons therefore in this matter to take the said factors into consideration. The defence counsel gave an assurance on behalf of the accused that the accused will attend trial however the learned State Counsel urged the court to be cautious due to the seriousness of the charge.
“Balancing and considering all the facts and circumstances of this case and bearing in mind the applicants Constitutional right to bail and their respective presumption of innocence. I am still not convinced that the two accused here have given the court sufficient comfort and assurance that they will be available to attend court from time to time and for the trial.
The court went further to say:
The court concurs with the sentiments of Ibrahim J. The offence facing the accused is serious, if found guilty the accused may be handed a death sentence, chances of absconding cannot therefore be overruled. The court also agrees with the learned State Counsel that a court in allowing bail in a case of murder should be cautious.
“The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion.
If the presumption of innocence were to be applied in full, there would never be a remand in custody…..
It has happened before and in similar cases. I do not mean to say that because other people have decided to leave business, family and friends or other crimes, rather than to face prosecution, this applicant will do so, that decision depends on all prevailing circumstances of the applicant. All I mean to say is that the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction.
J U D G E