Wambira Kamau decided to pay a surprise visit to her boyfriend Musyoka Kasi at his house in Ngong. On arrival she noticed a pink Toyota Vitz parked next to his Subaru. Suspicious of what would be going on, she crept to the rear of the house, peeped through his bedroom window and saw him lying on the bed with a white woman watching a movie.
Enraged, she picked a stone, broke the main door headed straight for the white woman and stabbed her left eye with a nail file. She then fled the scene leaving the white woman named Kimmie bleeding profusely. After frantic efforts Musyoka was able to get Kimmie to Maisha Mbaya hospital where she is still in critical condition. The same night Wambira was arrested and arraigned in court the next day.
Wambira, a single mother of two children one of whom is blind relies on her mother for upkeep and on odd jobs. She has instructed you to apply for bail which the prosecution is objecting to.
(a)Name the types of bail that one can apply for. (3 marks)
1. Anticipatory bail
2. Bail at the police station
3. Bail during trial
4. Bail pending appeal
(b)Identify two grounds upon which the prosecution may object to bail. (2 marks)
The prosecution may object to bail on the fact that;
She might interfere with witnesses as she has serious anger issues by the offence committed
She might escape the jurisdiction as the offence committed is a felony
She might cause other crimes while out on bail
Bail is not an absolute right as such not issued without caution
(c)Set out the grounds and factors which you as defense counsel would argue for Wambira's release on bail
1. The accused is entitled to Bail as a constitutional right. The refusal of bail before trial has been discouraged.
2. She is innocent until proven guilty. In Kenya this principle states that she should be considered innocent until a competent court of law can adjudge her as guilty.
3. She has two children, one of whom has special needs this shows that she has serious commitments as a mother and as such she is not a flight risk In the case of Republic v Danson Mgunya and another[1] the court observed that the considerations were neither universal nor exhaustive. There is a likelihood that she will appear at trial as she can’t abandon her children.
4. There is no likelihood that she will interfere with the case as she is a first time offender and a mother. She does not have political, criminal or business networks that are able to negatively influence the case. This is absent from the facts
5. The accused has never been on bail before and breached bail terms.
6. The accused is ready to deposit security to court in order to ensure her attendance at trial
7. The accused is not a repeat offender as such it is not likely that she will commit other offences while on bail.
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