Republic v Eric Osoro Nyambao [2022] KEHC 2454 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. 50 OF 2018

REPUBLIC...............................................................................PROSECUTOR

-VERSUS-

ERIC OSORO NYAMBAO............................................................ACCUSED

RULING

1. ERIC OSORO NYAMBAO is charged with offence of murder.  He pleaded not guilty and his trial is yet to commence.

2. On 1st April, 2019 the accused was granted bond of Kshs.500,000/= with one surety of similar amount.  The accused by his application dated 16. 8.2021 seeks review of his bond terms.  He states that he had found a well-wisher who is willing to be his surety and has agreed to provide her share certificate and pay slip.  The accused bases his prayer for review of bond terms on the ground that he is an orphan and on the ground he has been in custody awaiting his trial for 3 years.

3. I have considered the application.  It should not be lost sight of the fact the accused is charged with a very serious offence, murder.  The nature of the charge an accused faces is material when a court is considering bail/bond:  see the case REPUBLIC VS. ROBERT ZIPPOR NZILU (2018) eKLRas follows:-

“10. Gravity of the offence as a consideration was appreciated byMbogholi Msagha, JinCriminal Application No. 319 of 2002PRISCILLA JEMUTAI KOLONGE VS. REPUBLIC(unreported) at page 3, wherein he held as follows:

‘However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive.’”

4. The accused also did not show changed circumstances to justify review of bond terms:  see the case REPUBLIC VS. NAOMI NECHESA SANYA & ANOTHER (2020) eKLR as follows:-

“14. This court faced with a similar application in REPUBLIC v JOSEPH KURIA IRUNGU alias JOWIE & another [2019] eKLRhas this to say: -

‘14) The Applicant bears the burden on review to show on a balance of probability why the earlier order should be vacated and why it should be unjust not to vacate the order. He must show that the circumstances of the case are so altered that compelling reasons are disclosed for review of the earlier order. This position was clearly stated by Justice Muriithiin his well argued decision inREPUBLIC v DIANA SULEIMAN SAID & ANOTHER [2014] eKLR: -

‘11. The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large.  In the same way that an unsuccessful Applicant for bail may repeat his application if his circumstances changed in such a manner as to favor his release on bail . . .’”

5. The application for review of bond terms, in view of the above discussion and because the bond terms of 1st April,2 019 are reasonable, I decline to grant the prayers sought by the application dated 16th August, 2021.

6. I am concerned that this case of the year 2018 has not commenced.  A hearing date shall be fixed on priority basis at the reading of this Ruling.

RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

Accused : ERIC OSORO NYAMBAO : Present

For accused : - Absent later Mr. Wachira HB Mr. Muindi

For DPP : Mr. Kasyoka and Mr. Benjamin

COURT

RULINGdelivered virtually.

MARY KASANGO

JUDGE