Case ID:175330

Republic v Rafael Wafula Simiyu & another [2021] eKLR

Case Metadata

Case Number:

Criminal Case 12 of 2020

Parties:

Republic v Rafael Wafula Simiyu & Peter Omose Omunyine

Date Delivered:

17 May 2021

Case Class:

Criminal

Court:

High Court at Kiambu

Case Action:

Ruling

Judge(s):

Mary Muhanji Kasango

Citation:

Republic v Rafael Wafula Simiyu & another [2021] eKLR

Court Division:

Criminal

County:

Kiambu

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. 12 OF 2020

BETWEEN

REPUBLIC...................................................................APPLICANT

VERSUS

1. RAFAEL WAFULA SIMIYU

2. PETER OMOSE OMUNYINE........................RESPONDENTS

RULING

1.

RAPHAEL WAFULA SIMIYU

, the 1

st

accused is charged with the offence of murder contrary to

Section 203

as read with

Section 204

of the Penal Code. He pleaded not guilty.

2. On 9

th

April, 2020 the 1

st

accused was ordered to be released from custody on his own bond of two million shillings with one surety of similar amount. 1

st

accused has approached this Court with a Notice of Motion application dated 27

th

April, 2021 seeking revision and variation of the bond terms.

3. The application is supported by the affidavit of

FRANCIS KARANJA NG’ANG’A

learned counsel for the 1

st

accused. The 1

st

accused together with his co-accused pleaded not guilty on 9

th

April, 2020. Since that date, the 1

st

accused has been held in custody.

4. There is no doubt that 1

st

accused faces a serious charge on whose conviction would attract serous punishment. The court is required to take into account the charge an accused is facing in setting the bail/bond terms. This was so stated in the case

REPUBLIC VS. ROBERT ZIPPOR NZILU (2018) eKLR

thus:-

“

Gravity of the offence as a consideration was appreciated by

Mbogholi Msagha, J

in

Criminal Application No. 319 of 2002

PRISCILLA 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.’”

5. The main function in granting bail/bond is to ensure an accused person does attend trial. The 1

st

accused seeks revision of bond terms, hereof. He seeks revision on the ground that he’s unable to meet the terms set. In the case

RAMADHAN IDDI RAMADHAN & 5 OTHERS VS. REPUBLIC (2019) eKLR

the court had this to say on the amount of bail/bond ordered:-

“

The

Supreme Court of the United States of America

in the case of

STACK V BOYLE U.S. 1.3.1951

‘the court provided guidelines in assessing “whether bail is excessive starting from the premise that the traditional right to Freedom before conviction permits the unhampered preparations of a defence and serves to prevent the infliction of punishment prior to conviction. The court defined excessive as:

Bail set at a figure higher than an amount reasonably calculated to assure the presence of the accused. Significantly, the court tied the question of whether a bail determination is excessive to the purpose of bail. As the court explained, the purpose of bail is to help assure the presence of the defendant at subsequent proceedings. Since the freedom of bail is limited, the filing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.’”

6. I have considered the circumstances of this case and I find there is no basis of reviewing the bond terms issued on 9

th

April, 2020. The terms of bond are in my view sufficient to ensure the 1

st

accused does attend trial. It is for that reason that the application dated 27

th

April, 2021 is dismissed.

RULING DATED and DELIVERED at KIAMBU this 17

th

day of MAY, 2021

.

MARY KASANGO

JUDGE

Coram:

Court Assistant……………………. Ndege

1

st

Accused: ………………………..Present

For 1

st

Accused: ……….…………N/A

For DPP: ……………………………. Ms. Kathambi

COURT

Ruling delivered virtually.

MARY KASANGO

JUDGE