[2014] KEHC 7679 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

HIGH COURT MISC APP. NO. 254 OF 2013

JACOB KIOKO MBUTU ….........................................APPLICANT

VERSUS

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

R U L I N G

This application was brought by way of Notice of Motion dated 21st August 2013, by the applicant herein. It mainly seeks that the court be pleased to review his bail terms of Kshs.2,000,000/= which were granted by the lower court.

The right to bail pending trial is not absolute; bail can be denied if there are compelling reasons to warrant denial of bail.

"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 (Article 49(1) (h)”

A reading of recent Court decisions shows the approach taken by Courts in setting out the criteria for determining the threshold of compelling reasons. Since there are no statutory guidelines, the determination of what amounts to compelling reasons is a matter for judicial discretion.

Further, there is no requirement on the manner in which the prosecution should demonstrate compelling reasons for denial of bail. Normally, this is done by way of oral submissions; however, there may be instances where Affidavit evidence may be required to demonstrate certain statements of fact.

InRepublic versus Danson Mgunya & Another Criminal Case No. 26 of 2008, Mombasa, Ibrahim J (as he then was), pointed out that the Constitution ought to be interpreted in a manner that enhances the rights and freedoms of individuals, rather than in any manner that curtails them. This is in tandem with the provision of Article 20 clause 1(b) that:

“In applying a provision of Bill of Right a court shall adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”

Each case must however, be decided in its own circumstances and context.

In Aboud Rogo Mohamed & another v Republic Criminal Case No. 793 of 2010 [2011] eKLR, Lesiit J

observed that there are no legislative guidelines on bail. That the court is left with an unfettered discretion to determine an application for bail and that in interpreting the Constitution, the Court should act in a manner that promotes the rights of an individual.

Usually the court will take into consideration various factors and circumstances; and one paramount consideration is whether the release of the individual will endanger public security, safety and the overall interest of the wider public: See - Republic vs Muneer Harron Ismail & 4 Others, H.C. Criminal Revision No. 51 of 2009. The state has not submitted that the applicant herein posess a danger to public security.

In Republic v Ahmad Abolafathi Mohammad & Another, Criminal Revision No. 373 of 2012, Achode J observed that Article 49(1)(h) of the Constitution vests discretion in the court to consider whether the reasons advanced amount to compelling reasons, upon which an applicant may be denied bail.

Where matters of public safety and security are invoked as a compelling reason, there is need for the Court to consider the fact that the rights of individuals are not to be enjoyed exclusively, but also in light of the rights and freedoms of others. The court noted as follows:

“The respondents have a right to enjoy their fundamental rights and freedoms, but it is my humble view that Kenyans and aliens of good will also have a right to the quiet enjoyment of their rights, and to go about their daily business without threat to life or limb, and without being placed in harm’s way.”

The primary consideration is whether the applicant shall attend court and be available for trial (the omnibus criterion). Other factors are to be considered within the parameters of this principle. Such other factors include:

Nature of charges – in this case the charges being under section 296(2) of the Penal Code are very serious indeed.

Strength of the evidence which supports the charge. This applies only in exceptional circumstances where, for example, the court has placed the accused on his defence, due to the presumption of innocence.

Gravity of the punishment in the event of conviction. – In this case the charge carries a death penalty which is the ultimate sentence in criminal charge.

Previous criminal record of the accused (if any). - This has not been brought to the attention of the court.

Likelihood of the accused interfering with witnesses or suppressing any evidence that may incriminate him. – This has not been intimated to court.

Likelihood of further charges being brought against the accused, which has not been indicated.

It has also not been demonstrated that there is need to detain the applicant for his own protection.

Of paramount importance however, is that at this point the appellant is presumed to be innocent by virtue of Article 50(2)(a) of the Constitution. Where the court grants such stiff terms of bond in the circumstances of a case as to make them unattainable by the applicant that may be as good as denying him bail.

The duty lies on the prosecution to demonstrate compelling reasons justifying denial of bail. In this case it is noted that the state which is vested with the onus of proving that there are compelling reasons for the denial of bail has conceded the application.

For these reasons the application for bond review is allowed.

The applicant’s bond terms are reduced from Kshs.2,000,000/= to Kshs.100,000/= with one surety of like amount.

The Deputy Registrar shall examine the surety for purposes of bond.

It is so ordered.

SIGNED DATEDandDELIVEREDin open court this 24thday of February 2014.

L. A. ACHODE

JUDGE