Can a murder suspect be freed on bail?

What the law says

• The Criminal Procedure Code (Cap 75) cites cases that were not bailable in the old Constitution.
• Section 123 states that for persons arrested, detained or on trial for offences other than murder, treason, robbery with violence or attempted robbery with violence or any other drug related offence, should be admitted to bail.
• Article 49 (1)(h), of the new Constitution says that any offence is bailable unless there are compelling reasons to deny the accused person right to bail or bond.

Mr Taiko Kitende Muinya is a man whose case could alter the way courts deal with murder suspects.

Last week, he sought to be released on bail pending his trial. According to Mr Muinya, it was his right to be released on bail pending the hearing of the case on the basis of the new Constitution.

In opposing the application, the Attorney-General, through State Counsel Catherine Mwaniki, admitted that the offence of murder was bailable but the right to bail was not absolute, but a matter to be decided by a judge.

In the application, Mr Muinya said that provisions in Article 49 of the new Constitution give him the right to seek bail.

The article reads in part: “An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

Mr Justice Fred Ochieng’ agreed with Ms Mwaniki that it was now up to the court to decide whether or not to free a suspect on bail or bond.

Lawyer James Mwamu, who is also the president of the East African Law Society, said that the Criminal Procedure Code and the Penal Code had not been repealed.

Therefore, said the lawyer, offences such as murder, robbery with violence and treason were not bailable. The lawyer, however, said that the new Constitution allows Parliament to legislate laws that would limit the right of fundamental freedom.

Lawyer Chacha Odera said the new constitutional provision “merely gives discretion to the judicial officer (trial magistrate or judge) to decide”.

Yet another lawyer Kipchumba Murkomen said that with the words “compelling reasons” in the Constitution, one can argue that capital offences are still not bailable.

He said Parliament, while making laws, can still retain the Criminal Procedure Code as some of the compelling reasons.

Another lawyer, Kioko Kilukumi, differed saying all capital offences were now bailable. “I will be soon making applications for some people to be released on bail,” he said.

The lawyer said releasing one on bail presumes than one is innocent until proved guilty. While denying Mr Muinya bail, Mr Justice Ochieng’ said the prosecution had cited compelling reasons before him to have the accused remain in custody.

The prosecution said the accused was arrested on suspicion of killing his 17-year-old son at Endonyoshalo in Kajiado North. He said that since the offence attracted a maximum of a death penalty, Mr Muinya was likely to flee.

Some lawyers said the provision was likely to open a Pandora’s box since suspects whose trials have been delayed for several years would advance similar reasons to seek release.