[2021] KEHC 13078 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO.72 OF 2019

GKG......................................................APPLICANT

VERSUS

REPUBLIC.......................................RESPONDENT

RULING

1. The subject of the ruling herein; is a notice of motion application dated 19th November 2019, brought under the provisions of; Articles; 19, 20, 25, 28, 49(1), (h), 50(2)(a)51(1), 158(2) and 259 of the Constitution of Kenya, and sections 123 and 124 of the Criminal Procedure Code. It is supported by the grounds thereto and an affidavit of even date sworn by the applicant.

2. The applicant is seeking for the following orders, as reproduced: -

a) That, this honorable court be pleased to admit the applicant to bail and consequently the accused be and is hereby released from custody on such terms that, the court may deem fit, pending hearing and determination of this case.

b) That, the honorable court be pleased to grant any other order that it deems fit and just to grant in the circumstance.

3. The applicant avers that, he was arrested on 7th October 2019, on suspicion of having committed murder and subsequently, charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (cap 63) laws of Kenya. However, following a plea of not guilty, he has been incarcerated since then.

4. He further deposes that; he is a family man and a father of six children, who all depend on him for provision. That, he has a child named AG, aged 13 years who suffers from “Down Syndrome”. That he requires constant medical care and his incarceration has been detrimental to the well-being of the child, and a daughter; GW who attends school at Kabete National polytechnic and he is responsible for her education.

5. In addition, he is at an advanced age and is struggling to withstand the conditions in custody. Further, he has a good record with both the police and prison officers at the remand prison.

6. He avers that, the pre-trial process has been prolonged and amounts to punishment. That, he is not a flight risk and not capable of skipping bail or bond. That, since his arrest, he has been cooperating with the police without any mischief.

7. He argues that, under Article 49(1)(h) of the Constitution of Kenya, an accused person has a constitutional entitlement to be released on bond or bail on reasonable conditions and terms pending trial. That, there are no compelling or irresistible reasons why he should be denied bail.

8. That, he is entitled to the principle of presumption of innocence until proven guilty, and further incarceration acts to defeat this presumption which is a fundamental right. He is ready, able and willing to abide by bond or bail terms and conditions that may be imposed by the Honorable court and will attend all the proceedings whenever and wherever required to do so.

9. However, the application was opposed by the Respondent vide an affidavit dated 4th December 2019 sworn by No. 85856, Fred Ambasa, a Police Officer, attached to DCI Dagoretti Police Station. He avers that; the right to bail under; Article 49(1) (h) of the Constitution is not absolute and should be exercised judiciously and subject to the discretion of the court, taking in consideration all facts of the case.

10. Further, the principles of bail and bond policy guidelines, supports the Respondent’s position that, it is justifiable to subject an accused person to pre-trial detention, where evidence against him/her is very strong.

11. That accused person has been charged with murder, whereby he killed his wife and the temptation to abscond from the jurisdiction of the Honorable court is real if he is released on bond. That, prior to the incident, he had a frosty relationship with deceased stemming from disagreement on how to share proceeds from their rental houses located within Kangemi Area.

12. As the main prosecution’s witnesses are the accused daughter, his sister in law, cousin, two neighbours, as well as the Area Chief, there is a likelihood that, his presence in the area is enough to instill fear into them or otherwise interfere with them, should he be granted bond or bail.

13. That, GW who is the accused daughter, 20 years of age and main crucial witness is vulnerable and highly likely to be intimidated by the accused person with a view of compromising her intended testimony, if she ever comes to testify before court.

14. The Respondent argued that, the accused should not hide behind his advanced age and that “he should have known better the consequences of his action”. It will be in interest of justice to deny the accused bail or bond and continue detaining him until the conclusion of hearing of this case which the prosecution intends to conclude expeditiously.

15. The application was disposed of through filing of written submission. The learned counsel; Ms Samin for the applicant reiterated the averments in the affidavit in support of the application save to add that; the prosecution has not demonstrated any compelling reasons to deny accused bail or bond. That, the witness G is in good terms with the accused whom she has visited severally and is eager to have accused released.

16. It was reiterated that, the applicant is not a flight risk, especially due to restriction of movements due to, Covid-19 pandemic. Further, due the current economic conditions the court should grant the application reasonable bail terms.

17. However, the Respondent’s learned State counsel reiterated in submission that, the accused will interfere with witnesses if granted bail/bond and the same should only be granted after witnesses testify.

18. That no documents have been produced to prove that, he supports the children or he has a place of abode or income. Moreover, his return to his children will affect them emotionally and mentally. As such the application should be dismissed.

19. I have considered the application in the light of the arguments advanced and I find that, the only issue to consider is whether the applicant should be released on bond and/or bail pending trial.

20. In that regard and/or considered opinion, the starting point is the recognition of the fact that, under Article 50(2) of the Constitution of Kenya, 2010, every accused person is presumed innocent until proved guilty.

21. As regards bail and/or bond, I note that, Article 49 (I) (h) of the Constitution of Kenya 2010, provides that, an accused person has a 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.

22. Similarly, section 123 (1) and (2) of the Criminal Procedure Code, empowers the trial court to admit an accused person to bail or release him or her upon executing a bond with sureties for his or her appearance.

23. However, the rights of the victim too must be considered and in that case, the court must ensure that, the trial will proceed. That, the accused will attend trial. Hence, the need to balance the accused’s constitutional right to bail and/or bond and the need to ensure that, the accused will attend the trial.

24. Be that as it were, bail or bond will be denied where the prosecution presents convincing evidence to justify such denial and demonstrate, with convincing evidence that, the release of the accused will present risks, and that such risks cannot be managed, even with the attachment of appropriate conditions.

25. It noteworthy that, the relevant statutory provisions of law do not define what constitute compelling reasons”. However, the Concise Oxford Dictionary 9th Editiondictionary defines, the term “compelling” as “rousing, strong, interest attention, conviction or admiration”, whereas the Black's Law Dictionary 7th Edition, states that, the phrase “compelling reasons” would denote reasons that are forceful and convincing.

26. It follows from the aforesaid that, for an accused to be denied the constitutional right to bail and/or bond the opposing party must advance cogent reasons. It suffices to note that, under clause and/or paragraph 4-9 of bail and bond policy guidelines of the Judiciary, the following factors will guide the court in determining whether the accused will attend trial if granted bail: -

a) The nature of the charge or offence and the seriousness of the sentence to be meted if the accused is found guilty;

b) The strength of the prosecution case;

c) Character and antecedents of the accused person;

d) Failure of the accused person to observe bail or bond terms;

e) Likelihood of interfering with witnesses;

f) The need to protect the victim or victims of crime;

g) The relationship between the accused and potential witnesses;

h) Child offenders;

i) The accused is a flight risk;

j) Whether accused is gainfully employed;

k) Public order peace or security; and

l) Protection of the accused person.

27. The Respondent herein relies mainly on two grounds; the proximity of the relationship between the accused and the witnesses and the possibility of interference and/or intimidating them. Of course the accused denies the same.

28. I find that, to reconcile that position, a pre bail report needs to be presented to court to establish beyond reasonable doubt inter alia; whether, the accused will interfere with the probable witnesses, or is a flight risk if released on bail or bond and his place of abode upon release vis-a-vis that of; family member witnesses.

29. Upon consideration thereof; the court will consider whether to release the accused on bond or not and if the accused will be accorded bail and/or bond terms, what conditions to impose if any. The subject report be availed in seven (7) days of the date of this order.

30. It is so ordered.

DATED, DELIVERED VIRTUALLY, AND SIGNED ON THIS 14TH DAY OF JUNE 2021.

GRACE L. NZIOKA

JUDGE

In the presence of:

Ms Samin for the accused

Mr Naulikha for the Respondent

Edwin Ombuna - Court Assistant