[2022] KEHC 10699 (KLR)

Director of Public Prosecution v Maero (Criminal Case E011 & E012 of 2022 (Consolidated)) [2022] KEHC 10699 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10699 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case E011 & E012 of 2022 (Consolidated)

WM Musyoka, J

June 10, 2022

Between

Director of Public Prosecution

Republic

and

Ferine Pinquett Maero

Accused

Ruling

1. In the two matters the accused is charged with the murder of her two children, contrary to section 203 of the Penal Code, Cap 63 laws of Kenya, as read with section 204 thereof. She took plea on 30th March 2022 in both matters.

2. Thereafter, the Advocate appearing for her, Mr. Kituyi, applied for her to be released on bond pending the hearing and determination of the matters. That plea was opposed by Mr. Mwangi for the Republic and Dr. Malala for the family of the victims. I directed that the County Director for Probation and Aftercare Services files pre-bail reports in the two matters before I can consider bail/bond.

3. The County Director of Probation and Aftercare Services has complied, and filed bail information reports, dated 10th May 2022. I have noted the information given to them.

4. The parties addressed me on 11th May 2022 on the matter. Mr. Kituyi for the accused submitted that the reasons given in the report did not fall within Article 49 of the Constitution as there were no compelling reasons, which he identified as interfering with witnesses, flight risk, inability to comply with the conditions the court may give, possibility of absconding, and having a previous criminal record. His submissions were echoed by Mr. Malenya. Ms. Challa for the Republic confirmed that the standard of proof required for establishing compelling reasons is balance of probability, and not beyond reasonable doubt. She stated that the facts and circumstances to be take into account include the character of the accused person; whether she is a flight risk; her own safety and that of the victims; among others. She argued that the hearing can be expedited. She cited Republic vs. Mbiti Munguti (2020) eKLR(Otunga J) she was supported by Ms. Mburu for the family of the victims

5. Bail/Bond pending trial is now a constitutional right, under the Constitution of Kenya, 2010, for all offences, regardless of how serious or heinous. A right, whether under a statute or the Constitution is something that a person is entitled to, and, therefore one does not need to ask for it. It accrues naturally from its granting by the law. In the case of bail/bond, under Article 49(h), it is available unless compelling reasons exist for it to be curtailed, Article 49(h) has not elaborated on what amounts to compelling reasons, and the courts have, in numerous decisions given elaboration on what it means. The parties, in their speeches before me, also stated these reasons. They include the likelihood of the accused absconding, also talked about in terms of flight risk; interfering with witnesses; safety and protection of the accused himself; likelihood of accused committing other offences, while on bond; a history of breach of bond terms; among others. I do not think the list of compelling reasons is exhaustive.

6. The Probation Office, in its reports, has laid information before me, to assist me make a decision on the matter of bail/bond. Both sides have submitted on that report.

7. After reviewing that information, as against the submissions, and the general reasons for which bond may be denied, I am not persuaded that there is any material to suggest that the accused is likely to abscond, or interfere with witnesses, or has a history of breach of bond terms. However, this is a case of alleged double murder. I have perused through the witness statements placed on record, and the general circumstances, as set out in the probationer’s report. I appreciate that the accused is presumed innocent until proven guilty, and I am sensitive not to prejudice the matters. Am also alive to the fact that pre-trial detention should not be seen as a form of punishment, for the accused is still innocent until the contrary is established, and pretrial detention, should, therefore be considered for concrete reasons. No doubt charges of the nature facing the accused herein, particularly where children of tender years are involved, could inflame tensions within the community. That could expose the accused to danger should she be released on bond so soon after the alleged incidenst. Am also alive to the fact that the accused ended up in hospital, after the incident, which dovetails with the observations in the reports that she may not have recovered psychologically enough to allow her into the general public, where she may harm others or herself. I am persuaded that there is sufficient material to find and hold that it may be necessary to hold her in detention pending hearing for the sake of her safety, both physical and psychological.

8. On way of dealing with situations where bond has been denied and accused person has been held in detention pending hearing, is to expedite the trial. In this case, it appears to be the direction that the parties have taken, going by the events of 30th March 2022, when they agreed to have four dates allocated for the hearing of the matters, being 27th July, 2022, 28th July 2022, 27th September 2022 and 28th September 2022.

9. In view of everything that I have said above, it is my finding and holding that there are compelling reasons for denial of bond/bail to the accused, and to have her remain in remand custody during her trials. I, therefore, order that the accused person shall remain in detention during the course of her trials, until the court orders otherwise. In the meantime, let the prosecution do everything possible to ensure that it avails all its witnesses on the four days when the matter is due for hearing. This court shall be disinclined to allocate to the prosecutor further dates for hearing after 28th September 2022. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10 TH DAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.