Republic v James Sioyi Kipkania & Geoffrey Makana Nyakundi [2015] KEHC 3804 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA T MURANG’A

CRIMINAL CASE NO 5 OF 2014

REPUBLIC……………………………….……........….PROSECUTOR

VERSUS

1. JAMES SIOYI KIPKANIA

2. GEOFFREY MAKANA NYAKUNDI…..........…......ACCUSED

R U L I N G

1. The Accused persons herein, James Sioyi Kipkania and Geoffrey Makana Nyakundi, are jointly charged with murdercontrary to section 203 as read with section 204 of the Penal Code.  It is alleged in the information dated 15/01/2014 that in the night of 19th and 20th July 2013 at Kagaa area within Kiambu County, and jointly with others not before the court, they murdered one Bernard Irungu Kirubi.  They pleaded not guilty on 29th January 2014.  Their trial commenced on 26/06/2014 before Ngaah, J (since transferred to another station) when one witness testified.  The case is scheduled for further hearing on 26/10/2015.

2. Both Accused have now applied to be released on bail pending conclusion of their trials.  Those applications (notices of motion dated 25/03/2014 and 23/04/2015) are the subject of this ruling.

3. Bail is now a constitutional right for any offence, and will be denied only for compelling reason.  Conditions for such bail must, again by constitutional edict, be reasonable.  See Article 49(1) (h) of the Constitution of Kenya, 2014.

4. The Republic purported to oppose bail, apparently in respect to the 1st Accused only, by a replying affidavit filed on 20/04/2015.  But it turned out at the hearing of the applications that the affidavit by one No 71662 PC Mbelenge, was not duly commissioned by a Commissioner of Oaths or Magistrate.  In effect therefore, there is no replying affidavit properly before the court.  The applications thus stand unopposed.

5. I find no compelling reason to deny the Accused persons bail.  They shall be admitted to bail upon their own personal cognizance in the sum of KShs 300,000/00 and one separate surety each in like sum.  It is so ordered.

DATED, SIGNED AT MURANG’A THIS 16TH DAY OF JULY 2015

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 17TH DAY OF JULY 2015