[2022] KEHC 16107 (KLR)

Ireri v Republic (Criminal Case E014 of 2022) [2022] KEHC 16107 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16107 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case E014 of 2022

LM Njuguna, J

December 7, 2022

Between

Robert Nthiga Ireri

Accused

and

Republic

Respondent

Ruling

1. The accused/applicant herein is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code.

2. On October 24, 2022, the accused person through his defence counsel filed a notice of motion seeking for orders that:i.The applicant be granted a reasonable cash bail and bond terms in respect of HCCR E014 of 2022 to be ascertained by the honourable court.ii.Cost of the application be in the cause.

3. The application is premised on the grounds on its face and further supported by the affidavit sworn by the applicant wherein he swore that under article 49(1) of theConstitution, an accused person has a right to be released on reasonable bail terms unless there are compelling reasons. Further that, theConstitution presumes an accused person innocent until proven guilty. He deponed that he will adhere to the bail and bond terms if granted and will attend court whenever required to so by the honourable court. He urged the court to grant the orders he has sought, in the interest of justice.

4. The prosecution through Sgt Simon Mutisya filed a replying affidavit in response and wherein he deposed that he is the investigating officer who was in conduct of the matter herein. That he opposed the release of the accused herein for the reasons that he faces a charge of murder having been accused of murdering his wife and a two year old son. That after he committed the offence, he attempted to commit suicide by stabbing himself in the throat and chest. Further that, the accused person’s other child who was present at the scene was unharmed and is currently staying with relatives. That her safety and security is not guaranteed if the accused herein is released on bond.

5. It was further deponed that the accused has been receiving treatment from a number of mental hospitals including Mathari Teaching and Referral Hospital and that he had in his possession, the medical reports of the accused showing that after being released from Mathari Mental Health Facility on June 23, 2022, he immediately committed the crime herein.

6. Further that, the offence herein shocked the community where the accused lived and they are still in shock and rage and therefore, his release poses a risk to both himself and the public. It was his case that from his investigations, the accused herein has been adversely mentioned and the witnesses have placed him at the scene of the incident and that there is overwhelming evidence directly pointing at him hence the possibility to abscond is quite high. In the end, it was prayed that the prayers herein should not issue in the obtaining circumstances.

7. Directions were given that the application herein be canvassed by way of submissions which directions, the applicant failed to comply with.

8. The respondent submitted that the applicant herein is not suitable to be released on bond and that there are compelling reasons as enunciated in the replying affidavit. That, article 49 of theConstitution makes it clear that the right to bail or bond is not unqualified and that it can be restricted in some circumstances if there are compelling reasons. Reliance was placed on section 123A of CPC and further Bail and Bond Policy Guidelines which additionally outlines the factors that the court may take into account while determining whether or not to grant an accused bond. It was its case that the accused committed the offence against his own family and there is no assurance regarding the safety and security of the unhurt remaining minor. It was further submitted that the accused further made an attempt to kill himself after having allegedly committed the offence herein and the said actions infuriated the public; that the key issue is the strength of the prosecution’s case and an argument has been made that if he is set free, then there is a likelihood that he will abscond. It was the respondent’s contention that the accused is not only dangerous to himself but also to other members of the public and as such, the application is unmerited given the circumstances herein.

9. I have considered all arguments presented by the prosecution as well as defence legal counsel and I find that the issue that I have to determine is whether there are compelling reasons to deny the accused bail or bond.

10. The grant of bail/bond to any accused person is regulated by article 49(I)(h) of theConstitution of Kenya 2010, which 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”.

11. From this provision, though bail is a constitutional right, it can be limited if there are compelling reasons. The court is empowered to give due consideration on whether to deny or grant bail/bond by giving reasons thereof. In the case of R v Joktan Mayende & 3 others [2012] eKLR, the court (Gikonyo, J) considered the scope of article 49(1) (h) of theConstitution on what constitutes compelling reasons. The court stated thus:“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by theConstitution.”

12. Bail pending trial is the cornerstone of a fair trial and can only be denied where there are compelling reasons not to grant bail. Section 123A of the Criminal Procedure Code provides the criteria for the court to consider when granting bail as: -(1)Subject to article 49 (1) (h) of theConstitution and notwithstanding section 123, in making a decision on bail and bond, the court shall have regard to all relevant circumstances and in particular -(a)The nature or seriousness of the offence;(b)The character, antecedents, associations and community ties to the accused;(c)The defendant’s record in respect of the fulfillment 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 protection.

13. Therefore, for an accused person to be denied bail, the burden or onus on a prima-facie basis lies on the prosecution to prove that there are compelling reasons for the accused to be denied bail. The accused is therefore constitutionally entitled to bail as a matter of right. The main objective of releasing an accused person on bail/bond pending trial is premised on the presumption that an accused person is innocent until proven guilty.

14. In the Court of Appeal case of Michael Juma Oyamo & another v Republic [2019] eKLR, the Court of Appeal stated that: -“…Article 49(1) (h) of theConstitution states that 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”. It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person…”

15. In the “Bail and Bond Policy Guidelines” at paragraph 4. 9, it was observed that:-In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of theConstitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences. According to the decisions of the courts, the determination of whether there are compelling reasons that can justify the denial of bail should be made by evaluating whether or not the accused person will attend his or her trial”.

16. In the case of Republic v Dwight Sagaray & 4 others [2013] eKLR, Korir, J stated thus:“For the prosecution to succeed in persuading the court on this criteria, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju v Republic [1973] EA 284, where the court in dismissing the prosecutor’s fear of interference with witnesses stated that before any one can say there would be interference with vital witnesses, at least some facts must be placed before court otherwise it is asking the court to speculate.”

17. The respondent has submitted that the applicant herein is not suitable to be released on bond as there are compelling reasons as deposed in the replying affidavit. That, the accused committed the said offence against his own family members and there is no assurance on the safety and security of the unhurt remaining minor who witnessed the alleged commission of the offence. That the accused further made an attempt to kill himself after he allegedly committed the offence herein and the said actions infuriated the public.

18. Further that, in the obtaining circumstances, there is a likelihood that the accused may flee and that notwithstanding, he is a danger to himself and other members of the public. That there is a likelihood of interference with witnesses and the family members who are victims herein may be in danger if the accused is released.

19. The respondent filed its replying affidavit and served the same upon the defence, who did not in any way file or rebut the depositions by the prosecution or place before this court any evidence to the contrary. [See Republic v Josphat Maithya Manzi & another [2022] eKLR].

20. In the upshot, I hold the view that the prosecution has proved to the required standard that there are compelling reasons not to release the accused on bail or bond. I decline to grant the orders.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L NJUGUNAJUDGE………………………………………..............for the accused.………………………………………..……………for the State.