[2022] KEHC 12968 (KLR)

Kihuti v Republic (Criminal Case 101 of 2014) [2022] KEHC 12968 (KLR) (Crim) (14 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12968 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 101 of 2014

JM Bwonwong'a, J

September 14, 2022

Between

Martin Kibe Kihuti

Applicant

and

Republic

Respondent

Ruling

1. The accused, Martin Kibe Kihuti is charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code (Cap 63), Laws of Kenya.

2. The accused attended court from 2014 when he was charged up until March 2020 when he absconded.

3. A warrant of arrest was issued and he was arrested and arraigned in court on March 9, 2022.

4. The accused has now approached this court vide his notice of motion dated April 1, 2022. His main prayer is for the court to reinstate his bail/bond terms as previously granted. The application is supported by the grounds that are set out on the face of the notice of motion and is supported by an affidavit sworn by the applicant.

5. The main averments are that he diligently attended court for six years until March 2020, when the High Court scaled its operations down due to effects of Covid – 19. Simultaneously, he underwent a financial crisis, and his advocate on record stopped picking his calls as he could not pay his legal fees. He further avers that he remained in the dark over the status of his case until his arrest on March 9, 2022. He also avers that he is not a flight risk. He has further averred that he never changed his phone number and still resides at the same residence and was easily traceable and reachable by the Investigating Officer. He avers that he was ignorant of the consequences of the failure to attend court and is apologetic. He urges the court to reinstate his bail/bond.

6. In opposition to the application, No xxxxxPC Fred Ambasa, who is the one the Investigating Officer, filed an affidavit. He has deposed to the following major matters in his replying affidavit dated June 30, 2022. He avers that the applicant has been inconsistent in his court attendance and has never attended court. Further, the surety admitted to court that he currently suffers from dementia. He avers that when the applicant absconded, he could not be reached on the mobile number provided as it was out of service. That it was later discovered that he had registered a new number with the aim of evading arrest. He avers that the accused had and knew of his obligation to attend court. He further avers that it is in the best interest of justice that the instant application be dismissed as the case is coming up for hearing on 3rd, 4th, 5th, 24th, 25th and October 26, 2022, where the remaining witnesses are expected to be heard.

The written submissions of the applicant. 7. Messrs Mbuthia Kinyanjui and company advocates filed written submissions for the applicant in support of the application. It was their submissions that the Honourable court rushed to cancel the applicant’s bond without proper inquiry. That at the time, the applicant was not represented by counsel yet an advocate had been appointed by the state. Further, the court failed to summon the advocate on record for the accused at the time to respond to the issues raised by the accused.

8. Counsel further submitted that the effects of covid-19 pandemic adversely affected the operations of the justice system in Kenya. The court should not consider the prevailing circumstances in isolation but take into consideration all the circumstances; which adversely affected not only the applicant but also practising advocates within the legal system. Further, that the applicant had attended court religiously for six (6) years and this should not be ignored.

9. In summary, counsel argued that the applicant had never had his bail/bond cancelled before, had never interfered with witnesses, was not a hazard to the community and did not have an advocate present when the decision to cancel bail/bond was made.

The respondent’s written submissions. 10. Ms Peris Maina, learned prosecution counsel for the respondent submitted that the accused is a flight risk. That the state spent substantial resources and time in tracking down the accused, who was well aware of his responsibility to attend court but chose not to. Further, that he never made any follow up at the criminal registry for a period of two years. Counsel asserts that the period was inordinately long and illustrates the accused person’s quest to prevent access to justice for the victims of the crime.

11. Learned prosecution counsel urged the court to dismiss the application as he will be granted an expeditious trial.

Issues for determination 12. Whether the applicant’s bail/bond should be should be reinstated.

Analysis and determination. 13. Bail is a constitutional right and should be granted to an accused person unless there are compelling reasons for the court not to do so. That is why Article 49 (1) (h) of the Constitution of Kenya is in the following words: -“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.”

14. It is in appreciation of this constitutional right that the trial court released the applicant on bail/bond when he was charged before this court. The essence of granting an accused bond/bail is to enable the accused to enjoy his freedom of movement, association and liberties. The primary consideration in matters of bail/bond is that an accused person should attend court as and when required to do so.

15. In the present situation, the applicant was granted bail but failed to attend court from 2020 to 2022 when he was arrested. The applicant in his application, affidavit and submissions says that he was prevented by factors beyond his control namely the scaling down of court operations due to the covid-19 and lack of information from his former advocate on record. The applicant as an accused person must attend court at all times when he is required to do so and when prevented by reasonable grounds, must bring them to the court’s attention. He cannot fail to attend court and expect the court to take it casually.

16. This court (Ibrahim, J as he then was) in Republic v Danson Mgunya & Another [2010] e-KLR, observed that the primary criterion for the grant of bond/bail is the availability of the accused to attend his trial. All the other reasons or grounds flow from it. The nature and gravity of the offence is one of them, the more serious the offence the greater the incentive to jump bail. Bond/bail is given on the undertaking that the accused person would attend court for his trial. This is the principal condition upon which the bond/bail is granted. It is at the core of the matter. Once that undertaking is broken or breached, then the foundation for bail/bond is destroyed.

17. In the instant case, the accused person faces a murder charge. He absconded for 2 years, the last court appearance having been in 2020 when four witnesses had testified as at that date.

18. The explanation of the accused for the abscondment is that he failed to attend court due to the Covid -19 and that he faced financial constraints to pay his advocate. After considering his affidavit and that of the investigating officer, I find his explanation to be plausible. I find as credible his affidavit that the accused had religiously attended court for six years. The explanation that the accused failed to attend court due the circumstances brought about by the covid -19, which included financial problems are equally plausible. Finally, the fact that the accused will have a speedy trial is not a ground to deny bail to the accused. Freedom even if it is for a short time is priceless and should be enjoyed fully.

19. The upshot of the foregoing is that the accused has discharged the burden of proof on a balance of probabilities that he did not deliberately jump bail with the result that his application has succeeded. Consequently, the bail/bond terms of the accused are hereby reinstated.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr Kinyanjui for the accused/applicantMs Maina for the Respondent