[2022] KEHC 15212 (KLR)

Gaitho v Republic (Criminal Case E004 of 2022) [2022] KEHC 15212 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 15212 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Case E004 of 2022

SN Mutuku, J

June 15, 2022

Between

Robert Gaitho

Applicant

and

Republic

Respondent

Ruling

1. The accuse, Robert Gaitho, seeks bail pending trial. He is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 18th October, 2018 at Kitengela town in Kajiado East Sub-County within Kajiado Count, he murdered Derrick Shinini.

2. The accused took plea on 21st April 2022 and pleaded not guilty.

3. Through his legal counsel, the accused filed the application dated 14th April anchored on articles 49(1) (h) and 50 of the Constitution, sections 123 and 123 (A) of the Criminal Procedure Code and Bail and Bond policy guidelines (2015) seeking orders that:(i)That the accused person herein Robert Gaitho be released on reasonable bond and/or bail terms pending the hearing of the case.(ii)That the Court gives directions as it deems fit for the hearing of the case.

4. The Application was supported by an affidavit sworn by the accussed on 14th April 2022 in which he has deposed that he is employed by the National Police Service as a police officer Service Number 85183 and currently based at Mai Mahiu police station. That he was arrested on 12th April, 2022 at his work place by officers from the Directorate of Criminal Investigations Department and Independent Policing Oversight Authority and was detained at Naivasha Police Station. That on 13th April, 2022 he was taken to Kajiado Law Courts and informed that he would be charged with the offence of murder.

5. He pleads with the court to admit him to reasonable bond and/or bail terms pending hearing and determination of this case. He has argued that he believes there are no compelling reasons that would deny him the right to be admitted to bail. That he is married with two children who rely on him and that he is willing to abide by and comply with any conditions set by Court upon grant of bond and/ bail including presenting himself to the court and authorities as and when required.

6. The application is opposed. Through an affidavit in opposition, No. 00137 Walters Omondi deposed that he is an investigating officer in IPOA/INV/002090-2018 being the investigation number in this matter and hence competent to swear this affidavit. That the accussed was charged with murder contrary to section 203 as read with section 204 whereby he is alleged to have murdered the deceased on 18the October, 2018.

7. It is deposed that the accused stands in a position of influence in the society as a member of the police service and that there is legitimate anxiety about the impact and influence, he may have on the civilian and police witnesses known to him if he is released pending trial. That this Honourable court has a Constitutional duty to balance the rights of all persons including the victim and that this court should protect the right that was lost under article 26 of the constitution being the right to life by providing an enabling environment for the prosecution witnesses to testify without any fear or interference by declining to grant the accused person bond or bail.

8. It is further deposed that the accused person has been charged with murder and if found guilty the punishment meted out could be that of death penalty and therefore more probabilities for the accused person to abscond.

Determination 9. I have considered the application for bail pending trial, the grounds, supporting the application and the Affidavit in opposition by the respondents. In summary, the grounds in opposition are that the applicant, being a person of influenced in society as a police officer, is likely to influence, threaten, intimidate, coerce or interfere with witnesses. It was argued further that there is one Charles Mwai Githiomi who is charged at Milimani Chief Magistrate’s Court with the offence of Accessory after the Offence herein who is yet to take the plea and who is still stationed at Kitengela Police Station and therefore within reach of the civilian witnesses and therefore if the accused is released it will increase the danger of threat to civilian witnesses.

10. It is further argued that the offence is serious and likely to attract death penalty and this may motivate the accused to abscond.

11. This court commission for a pre-bail report from the Probation Office. This report was filed on 28th April, 2022. I have read the report. It recommends that the accused should be considered for release on bail/bond and that he has strong family ties and fixed abode. His mother is willing to stand surety for him.

12. The applicable law on the issue of bail/bond is article 49 (1) (h) of the Constitution provides that:1)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.

13. The right to bail/bond is not absolute and the court has discretion to grant or decline granting bail/bond.

14. There is also the provisions of article 50(2) of the Constitution, to the effect that every accused person is entitled to the presumption of innocence until there is proof to the contrary. On the issue of this presumption of innocence, the Bail and Bond Policy Guidelines, recommend that:The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.

15. Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, also provides for this issue as follows:(1)Subject to article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the court shall have regard to all the relevant circumstances and in particular—(a)the nature or seriousness of the offence;(b)the character, antecedents, associations and community ties of the accused person;(c)the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;(d)the strength of the evidence of his having committed the offence;(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection.

16. Applications for bond for persons accused of murder are not new to this court. The accused person, whether charged with murder or any other criminal offence, enjoys a constitutional right to bail pending hearing and determination of his case. The only rider being that such right is not absolute. That right can be denied upon proof on a balance of probabilities that there exists compelling reasons. The burden to provide proof of compelling reasons lies with the prosecution.

17. I have noted that courts have given consideration to the following in granting or declining to grant bail/bond:(i)Probability of the accused person turning up for trial.(ii)The nature of the charges.(iii)The strength of the evidence supporting the charge.(iv)The gravity of punishment in the event of conviction.(v)Any previous criminal records of the accused.(vi)Presumption of innocence.(vii)Protection of the accused.(viii)The likelihood that the accused will interfere with the witnesses.

18. I have given consideration to the grounds in opposition. As regards the nature of the offence and the seriousness of the punishment likely to be meted if the accused persons is ultimately found guilty, this court is privy to other cases where an accused facing a murder charge has been released on bond with no adverse consequences. On a balance of probabilities, this court is not persuaded that seriousness of the offence and the stiff penalty is a compelling reason.

19. On the issue of threat, intimidation, coercion, influence of the witnesses, I have noted that this offence is alleged to have been committed on 18th October 2018. If anyone was keen on influencing witnesses there was ample time to do so. It is also not lost to me that if the prosecution and the investigators are aware of any threats to witnesses, there is provision under the law to protect that witness. Besides, in granting bail/bond, this court issues terms and conditions to be met by an accused being released on bond. If he were to breach any of those conditions, the bond would stand cancelled and the accused remanded in custody until the case is finalized.

20. The paramount consideration in granting or declining to grant bail is whether an accused person will attend court when required to do so for the hearing of his case. To ensure this is done, the court puts in place terms and conditions of bond that the accused should abide by.

21. It is my considered view, therefore, that the prosecution has failed to present compelling reasons, on a balance of probabilities, to the court to persuade this court to decline granting bail/bond to the accused person. Consequently, this application succeeds. The accused, Robert Gaitho, is hereby admitted to bail pending the hearing and determination of this case on the following terms:(a)That the accused shall execute a bond of Kenya Shillings One Million (Kshs 1,000,000) with one surety of similar amount.(b)In the alternative, the accused shall deposit a cash bail of Kenya Shillings Five Hundred Thousand (Kshs 500,000).(c)The accused shall not do any act that may compromise fair trial, including threatening, intimidating, coercing, or in any other influencing the witnesses.(d)The accused shall attend court at all times during the hearing and mentions when his attendance is required.(e)That a breach of any of the conditions set above will automatically lead to cancellation of the bond and remand of the accused in custody to await the conclusion of the trial.

22. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JUNE 2022. S. N. MUTUKUJUDGE