Republic v Richard Onguti Ombati & Devis Mongare Ayako [2015] KEHC 2582 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO.68 OF 2013

REPUBLIC                                   -           PROSECUTOR

VERSUS

RICHARD ONGUTI OMBATI           -           1ST ACCUSED

DEVIS MONGARE AYAKO              -           2ND ACCUSED

RULING

The two accused persons Richard Onguti Ombati and Devis Mongare Ayako are jointly charged with the offence of Murder contrary to Section 203as read withSection 204 of the Penal Code.

It is alleged that on the night of 3rd and 4th day of June 2013 at Engorwa Sub-location in Masaba South District within Kisii County, jointly with others not before court, murdered JANE OMBATI.

By a written application filed on 8th July 2013, the accused persons, through their advocate Mr. Soire applied to be released on bond pending the hearing and determination of this case.

The said application was however opposed by the State through Mr. Majale, State counsel, who relied on the replying affidavit of the investigating officer Inspector JULIUS KIRIGHA sworn on 7th June 2013, in which the State opposed the release of the applicants on bond on the basis that:

“If the applicants are released on bail, their life will be in danger as the situation on the ground is volatile.”

Hon. Justice Sitati, upon hearing and considering the competing arguments of both parties, on 23rd July 2013 declined to grant the applicants bond but with a rider that they (applicants) would be at liberty to renew their bond application at a later date, within 6 months, when the situation on the ground was expected to have cooled down.

Pursuant to the court’s said orders of 23rd July 2013, Mr. Soire, counsel for the accused persons, on 5th November 2014, made an oral application for their release on bond pending their trial.

The, court in its ruling made on 14th November 2014 once again rejected the applicant’s said application on the ground that:

“The pre-bail report filed on 23rd September 2014 was unfavourable on the accused persons as the report indicated that the community affected by the alleged murder was still volatile and not ready to accept the accused persons back to their midst..”

The instant application for bond, dated and filed on 16th September 2015 is therefore the accused persons’ third attempt in their pursuit to be released on bond pending their trial.

This latest application was not opposed by the State through their counsel Mr. Imbati.  The State confirmed and conceded that the security situation on the ground had calmed down as shown in the reports of the area chief and church elder which had been annexed to the applicants’ application.

I have carefully considered the latest application for bond filed on 3rd September 2015 together with the supporting affidavit and annextures.  I have equally considered that the said application is not opposed by the prosecution.

I have further taken into account the fact that under the current constitution at Article 49 (i) (h), all accused persons have a right to bail pending trial irrespective of the offence that they have been charged with and that the only time that an accused person can be denied bond is when there are compelling reasons to do so.

The onus of demonstrating the existence of such compelling reasons rests with the State.  In the instant case, the State has categorically stated, through Mr. Imbati, State counsel, that they are not opposed to the application for bail and that the tension on the ground had subsided.

In the circumstances, I find that as matters stand now, there is no reason, compelling or otherwise, that would stop me from granting the applicants their constitutional right to bail.  The fear and apprehension that the accused persons’ life may be in danger, if released on bail, has been dispelled.

Consequently, I admit both the accused persons to bond pending their trial on the following terms:

Each accused person shall execute a personal bond of Ksh.1,000,000/= with two (2) sureties of a similar amount.  The same shall be approved by the Deputy Registrar of this court, on  condition that:

The accused persons attend court for mention every month until the hearing and disposal of this case or until further orders of the court.

The first such mention shall be on 2nd November 2015.

In the event of any one default, the bond shall be immediately cancelled and the sureties made to account.

It is so ordered.

Dated, signed and delivered in open court at Kisii this 1st day of October, 2015

HON. W. A. OKWANY

JUDGE

In the presence of:

Mr. Boyon for State

M/S Kaburi for Accused

Mr. Kamula: Court Clerk