[2022] KEHC 9893 (KLR)

COO v Republic (Criminal Revision E075 of 2022) [2022] KEHC 9893 (KLR) (Crim) (5 July 2022) (Order)

Neutral citation: [2022] KEHC 9893 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E075 of 2022

JM Bwonwong'a, J

July 5, 2022

Between

COO

Applicant

and

Republic

Respondent

(Being an application for revision of the order of Hon. M. Kivuti, SRM, dated 01/03/2022 in Makadara Chief Magistrate’s Court in Criminal Case No. E050 of 2022, Republic v 1. C. O. O, name withheld)

Order

1. This is an application for revision of the order of the lower court, which denied bail to the subject (a minor). The denial of bail was on the ground that the subject was a member of a gang and that if he was released on bail before the evidence of the victim was taken, he was likely to interfere with her evidence.

2. The lower court record was forwarded to this court after it was called by this court for revision purposes.

3. Following the issuance of directions by this court, both counsel for the subject and the prosecution filed written submissions.

The submissions of the applicant (a minor). 4. Counsel for the subject (Ms. Patricia Mundia) filed written submissions.

5. Based on article 49 (1) (h) of the 2010 Constitution of Kenya, counsel submitted that the applicant is entitled to be released on bail unless there are compelling reasons to warrant the denial of bail.

6. Again, based on article 50 (2) (a) of the 2010 Constitution of Kenya, counsel submitted that the applicant is presumed innocent until the contrary is proved.

7. Furthermore, counsel submitted that the Judiciary Bail and Bond Guidelines in paragraph 4. 9 provide that where the accused is a minor, the denial of bail/bond is considered not to be in the best interests of the such an accused person.

8. Counsel also cited the decision of this court (Ochieng, J) in Republic v Ahmed Mohamed Omar & 6 others (2010) eKLR in which the court stated that: “Meanwhile, before the High Court at Nakuru, my Learned Brother Emukule, J., has also had occasion to grapple with an application for bail pending trial. He did so in Republic vs Dorine Aoko Mbogo & Another, Criminal Case No. 36 of 2010; His Lordship expressed the view that; ‘murder, (like) treason, robbery with violence or attempted robbery with violence are offences which are not only punishable by death, but are by reason of their gravity, (taking away another person’s life, disloyalty to the state of one’s nationality, or grievous assault or injury to another person or his property), are offences which are by their reprehensiveness, not condoned by society in general. It would thus hurt not merely society’s sense of fairness and justice, and more so, the kith and kin of the victim, to see a perpetrator of murder, treason or violent robbery (committed or attempted) walk the street on bond or bail pending his trial. A charge of murder, treason, robbery with violence (committed or attempted) would thus be a compelling reason for not granting an accused person bond or bail.

9. Notwithstanding these remarks, the learned judge went ahead to grant bail in that case. I therefore believe that did not, and could not have meant that once an accused person is charged with an offence punishable by death, that is reason enough to deny him bond or bail pending trial.”

10. Counsel has cited other cases that re-state the principles governing the grant of bail such as where the prosecution is alleging that the accused is likely to interfere with witnesses; the prosecution has to produce evidence to support the allegation. See Republic v Dwight Sagaray & others, High Court Criminal Case No. 61 of 2012. I have perused those cases.

The submissions of the prosecution/respondent 11. The respondent has opposed the application for bail. The reason advanced by the prosecution is that this being an application for revision, the applicant has not demonstrated any illegality, incorrectness or impropriety to warrant review of the orders of the lower court.

12. Counsel for the respondent (Ms. Edna Ntabo) has therefore urged court to dismiss the application for lacking in merit.

Issues for determination 13. I have considered the affidavit and the submissions of the applicant. I have also considered the submissions of the respondent. I have also borne in mind the applicable law.

14. After doing so, I find that the following are the issues for determination.1. Whether the prosecution have demonstrated that the applicant is likely to interfere with witnesses.2. Whether this court has jurisdiction to revise the order of the lower court.

Issue 1 15. I find that the burden is on the prosecution to demonstrate on a balance of probabilities that the subject is likely to interfere with the witnesses.

16. I further find that where the prosecution alleges that the subject is likely to interfere with witnesses as in the present case; wherein it has closed its case, such an allegation lacks merit in the absence of supporting material or evidence to that effect. In the present case the prosecution has not placed any material before the court to support basis of the allegation that the subject is likely to interfere with the prosecution witnesses. The fear of the prosecution is unfounded and it still remains an unsubstantiated allegation. In the absence of an evidentiary basis the court left to speculate which is legally impermissible.

17. The denial of bail was on the ground that the subject was a member of a gang and that if he was released on bail before the evidence of the victim was taken, he was likely to interfere with her evidence.

18. I find that the victim/complainant has testified and the prosecution has closed their case.

19. It therefore follows that the matter has been overtaken by events.

Issue 2 20. Furthermore, the prosecution opposed the release of the applicant on bail because the applicant had not demonstrated any illegality, incorrectness or impropriety of any finding, sentence or order recorded or passed by the lower court in terms of section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya to warrant review of the orders of the lower court. In this regard, I find that the supervisory powers of the High Court are not limited to reviewing only orders of the lower court on grounds of illegality, incorrectness, or impropriety.

21. I find further that this court has wide powers which have been constitutionalized and widened by article 165 (6) of the 2010 Constitution of Kenya, which reads as follows:“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising judicial or quasi-judicial function, but not over a superior court.”

22. I find that the lower court ignored the constitutional command in article 53 (2) of the 2010 Constitution of Kenya; which required the court to take into account that:"A child’s best interests are of paramount importance in every matter concerning the child.

23. I therefore find that this court has jurisdiction to review the order of the lower court which erroneously denied bail to the accused/applicant; which I hereby quash.

Terms and conditions of the bail/bond of the Subject/applicant 24. I therefore find that the accused/applicant is entitled to be released on bail/bond. The only issues that fall for consideration are the terms and conditions of the said bail/bond. In this regard, section 123 (2) of the Criminal Procedure Code is instructive. It mandatorily provides that:"The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.”

25. The circumstances referred to include the circumstances of the Subject/applicant and the offence. In this regard, the social report of the probation officer is useful. It shows that the accused is a school going child in class six of a single parent namely the mother. The mother earns shs 6,500/ per month, furthermore, the report also shows the mother of the victim is opposed to the release of the Subject/applicant because he is a danger to the community.

26. The report also shows that the Subject/applicant is not as flight risk.

27. I have also borne in mind that the accused/applicant is charged with defilement contrary to section 8 (2) of the Sexual Offences Act No. 3 of 2006.

28. After considering all of the foregoing matters into account I hereby release the subject into the custody of his mother, who will deposit cash bail in the sum of shs 6,000/- in the account of the trial court.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMs Mundia for the subject/applicantMs Joy for the Respondent