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Court of AppealPartially AllowedCriminal Appeal No. 113 of 2018

Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR)

Court of Appeal of Kenya
28 February 2019
4,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled prosecutors must prove concrete reasons to deny bail — suspicion and untested witness statements are not enough.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Nairobi (Warsame, Musinga and Otieno-Odek, JJ.A.) allowing an appeal against a ruling of Lesiit, J. dated 24th October 2018 which denied bail pending trial to Michael Juma Oyamo and Caspal Ojwang' Obiero, who with Zacharia Okoth Obado (Migori Governor) faced two counts of murder. The co-accused Governor had been granted bail on stringent terms, but the learned judge found compelling reasons - risk of witness intimidation, flight risk and likelihood of disturbing public order - to deny the appellants bail. The Court of Appeal held that the prosecution bears the burden of proving compelling reasons to the required standard, and that the material before the trial court was insufficient. Reliance on untested witness statements and the mere fact that the accused had been supplied with witness statements could not justify denial of bail; untested statements bear little weight absent express admission, and the presumption of innocence applies. The Court also found no evidence that the appellants' release would disturb public order, noting that the more powerful Governor had been released without any disturbance. The appeal was accordingly allowed: each appellant to be released on cash bail of Kshs. 1,000,000/- or own bond of Kshs. 2,000,000/- with two sureties of Kshs. 2,000,000/- each, and to deposit all travel documents in court. No costs order was made. The judgment binds subordinate courts and High Court judges on the standard for denying bail under Article 49(1)(h).

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the prosecution discharged its burden of proving compelling reasons to deny the appellants bail pending trial under Article 49(1)(h) of the Constitution
  2. 2.Whether the prosecution adduced sufficient evidence of a likelihood of interference with witnesses by the appellants
  3. 3.Whether the trial judge erred in treating untested witness statements as evidence acknowledged by the appellants
  4. 4.Whether the release of the appellants was likely to disturb public order, peace and security
  5. 5.Whether granting bail to the 1st accused while denying it to the appellants was discriminatory

Key legal issues

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01

Burden of proof in bail applications

Holding

The prosecution bears the burden of proving, to the required standard, compelling reasons why an accused should not be admitted to bail pending trial.

Reasoning

Article 49(1)(h) confers a right to be released on bond or bail on reasonable conditions unless there are compelling reasons. The Court adopted the definition that compelling reasons are forceful and convincing reasons resting on real and cogent grounds meeting high constitutional standards, and held that the respondent's material fell short of that threshold.

p. 5
02

Witness interference as a compelling reason

Holding

Mere possession by the accused of witness statements, and unsubstantiated allegations of influence, cannot justify denial of bail; interference allegations must be supported by evidence.

Reasoning

The investigating officer only asserted that the 1st appellant 'wields influence and power at the behest of the governor' and that some witnesses came from the same area. Relying on the Criminal Procedure Bench Book and High Court authorities, the Court found these explanations insufficient and unproven to the required threshold.

p. 5
03

Weight of untested witness statements at the bail stage

Holding

Witness statements not subjected to cross-examination bear little weight and cannot found a finding that the prosecution case is strong, save where the accused expressly admits their correctness.

Reasoning

The trial judge had found that the appellants 'acknowledged' the evidence by responding in their affidavits. The Court held that the appellants in fact denied crucial parts of the prosecution evidence in their replying affidavits, so veracity could only be tested at trial, and the presumption of innocence applies.

p. 5
04

Public order and security as a ground for denying bail

Holding

The prosecution must adduce evidence that release will disturb public order, peace and security; the comparative release of a more powerful co-accused undermined that claim here.

Reasoning

The Governor, jointly charged with the appellants and wielding greater political power, had been released on bail without any ensuing disturbance of public order. The Court saw no basis to treat the appellants' release as more dangerous, and noted the prosecution may seek reconsideration if evidence of interference later emerges.

p. 5

Legal principles established

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  • The constitutional right to bail under Article 49(1)(h) may only be limited if the prosecution satisfies the court that there are compelling reasons, proved by real and cogent grounds, not speculation or conjecture.
  • The supply of witness statements to an accused does not by itself justify denial of bail; allegations of witness interference must be supported by evidence.
  • Untested witness statements bear very little weight unless the accused has expressly and voluntarily admitted their correctness, and an accused person is presumed innocent until the contrary is proved.

Court orders

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  1. 1.The appeal is allowed and the ruling of Lesiit, J. denying the appellants bail is set aside
  2. 2.Each appellant may be released upon depositing into court cash bail in the sum of Kshs. 1,000,000/- or on their own bond of Kshs. 2,000,000/- with two sureties of Kshs. 2,000,000/- each
  3. 3.The appellants shall deposit in court all their travel documents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
HC. CR. Case No. 46 of 2018 (Ruling dated 24th October 2018)
Jurisdiction invoked
First appeal to the Court of Appeal against a bail pending trial ruling of the High Court in a murder trial (Criminal Appeal No. 113 of 2018); no constitutional or statutory appellate provision is expressly cited in the judgment

Relief refused

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Any more stringent or alternative bail conditions beyond cash bail/bond and deposit of travel documents

The court granted bail only on the two specified terms, importing no conditions of the kind imposed on the 1st accused, but no further relief was sought or granted

Costs

No order as to costs is made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all, we allow this appeal and order that the appellants herein be and are hereby granted bail on the following terms:
p. 5Disposition - appeal allowed and bail granted
Each appellant may be released upon depositing into court cash bail in the sum of Kshs.1,000,000/- or on their own bond of Kshs.2,000,000/- with two sureties of Kshs.2,000,000/- each.
p. 6Final bail terms
Denial of a constitutional right is not a matter to be treated lightly and therefore any claims made against an accused person aimed at curtailing the constitutional right to liberty must not be made on speculation or conjecture.
p. 4Standard for denying the constitutional right to bail
Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.
p. 4Definition of compelling reasons
The appellants shall deposit in court all their travel documents.
p. 6Final order - surrender of travel documents

Issues in the judgment

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minor

Paragraph numbering in the judgment repeats the number 7 for two distinct paragraphs of the submissions record.

minor

The judgment contains a typographical error in the title of the Criminal Procedure Bench Book reference.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR)", Case Analysis (2019). Criminal Appeal No. 113 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/953/eng@2019-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.