[2023] KEHC 26663 (KLR)

Machera & another v Republic (Criminal Case E029 of 2023) [2023] KEHC 26663 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26663 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case E029 of 2023

RPV Wendoh, J

December 14, 2023

Between

Jacob Mwita Machera alias Jeremiah

1st Accused

Chacha John Mwita

2nd Accused

and

Republic

Prosecutor

Ruling

1. Jacob Mwita Machera alias and Jeremiah and Chacha John Mwita are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. By application dated 23/10/2023, Nyangwencha Advocates filed an application seeking release of the 1st Accused, Jacob Mwita Machera alias Jeremiah on bond. The grounds upon which the application are made are found in the body of the application and the affidavit of the applicant dated 23/10/2023 and a further affidavit dated 14/11/2023.

3. He contends that under Article 49 (1) (h) of the Constitution, bond is his Constitutional right; under Article 50 (2) (a) he is presumed innocent till proved otherwise; that he is a Kenyan citizen and not a flight risk; that he has a young family for who he is the only bread winner; that being the eldest son, he also takes care of his mother and siblings; that he will abide by all the bond terms and attend court as will be required of him; that he had just got a job with Mgas Company where he was earning in order to support his family and is likely to lose the job if he remains incarcerated.

4. In the further affidavit, the applicant responded to the investigating officer’s affidavit opposing bond in which the investigating officer deponed that the 1st Accused had disappeared after 26/7/2019 when the alleged offence occurred. He responded that he had been employed by Lavington Security Ltd in Nairobi since 2019 to June 2023, that there is no evidence of the efforts made to trace him; that he used to visit home and attend court whenever his father John Machera was in court. He attached a copy of his identity card, certificate of service and letter of recognition; that in 2020, he did a course in Computer as per certificate (JM2) in February 2020; that in 2022, he did a driving course and could not have been on the run; that there is no evidence that he has issued any threats to any witnesses as the said witness are still cultivating the land next door to theirs; that the conviction of his father does not make him a flight risk; that the investigating officer has been calling his mother demanding money so that he can be released on bond.

5. The 2nd Accused Chacha John also filed an application for bond dated 11/11/2023. He is represented by Omonde Kisera Advocate. He relies on same grounds as Jacob, save that he adds that he has a medical condition that is likely to get worse if he remains in remand; that he has a Constitutional right to bond / bail, is not a flight risk and will abide by any terms that the court may grant. He filed a further affidavit dated 2/1/2023 and 4/12/2022 in response to the investigating officer’s objection to bond dated 24/11/2020. He deposed that he resides and works at Nairobi’s Mukuru kwa Njenga slums as a motor cycle rider and often visit his home village and last visited Karege – Nyabukarange in October 2023 to attend a funeral of a close relative; that he has never been informed that the DCI were looking for him; that the fact that Lucas Machera was convicted does not make him a flight risk.

6. In opposing the application for bond, PC Dan Njura of DCI Kehancha deponed that the offence was committed in 2019 at Nyabukarange village of Bukira Location by the two accused and their father Lukas Machera; that Lucas Machera Mwita was charged in Criminal case No. 10 of 2019 Republic versus Lukas Machera and convicted on 15/7/2021 and sentenced to twenty (20 years imprisonment; that the applicants escaped and disappeared till Jacob was arrested on 5/4/2023 at Nyabukarange on tip off and John was arrested on 11/11/2023 in Nairobi Mukuru Kwa Njenga. According to the investigating officer, because of their accomplices’ conviction and sentence, it is an incentive for them to evade justice and hence they are a flight risk. The investigating officer also deponed that the accused are also likely to interfere with witnesses who are close family members and urged the court to deny them bond.

7. Mr. Masolo filed submissions in support of the application. Counsel relied on Article 49 (1) (h) of the Constitution which guarantees an arrested person’s right to bond except where there are compelling reasons to deny the accused bond. He also relied on Article 50 (2) where all arrested persons are presumed innocent till proved guilty and urged the court to consider the Bail and Bond Policy Guidelines paragraph 4. 9 which provides what should be the prime consideration in an application for bond.

8. Counsel argued that the applicants proximity to the border is not a basis to determine whether one is a flight risk.

9. As regards interference with witnesses it was urged that there is no evidence to demonstrate that the applicants are likely to interfere with witnesses.

10. The prosecution counsel Mr. Kaino also filed submissions in opposing the bond. He argued that compelling reasons may vary from case to case and have been defined to mean that which is ‘forceful, convincing, persuasive, undesirable etc.

11. He also referred the court to the Bail and Bond Policy Guidelines 2015 which sets out what the court should consider in such an application and the procedure to be followed which should be weighed on a balance of probabilities. He relied on the decision of Waititu vs. Republic (2021). Counsel also relied on the decision of R vs. Dwight Sagaray & 4 others and Republic vs. Gibson Kiplagat Bett (2022) EKR where the Court dealt with the issue of interference with witnesses. Counsel submitted that murder being a serious offence, and attracts serious penalty of death, self preservation is natural by interfering with witnesses or taking flight. On the other hand, the victims / witnesses may have genuine fear misapprehension and anxiety that it may result in their refusing to testify fearing harm being done to them.

12. Counsel also referred to paragraph 20 of the Victims Protection Act No. 16 of 2014 which was considered in Waititu case (supra) where the court observed that the rights of victims or witnesses should be protected. Reference was also made to Republic vs. Fredrick Ole Leliman & 4 others (2016) eKLR.

13. Lastly, counsel urged that because of the accused’s antecedents that is fleeing after commission of the offence, they should not be released on bond because from July 2019, they were at large till 2023 and it is a case that calls for denial of bond.

14. I have considered the application, the affidavits sworn by both Applicants, the submission of counsel. Article 49 (1) (h) provides for release of an accused person on bond. The provision reads as follows:“49(1) An arrested person has the right-(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

15. Bond will only be denied if there are compelling reasons to do so. The term compelling reasons has been defined to mean forceful, convincing, persuasive etc. In the circumstances, it means that the prosecution will have to convince or persuade the court on why the applicants should not be released on bond. In Republic vs. Jokton Mayande and 3 Others Criminal Case 55 of 2009 the judge held:-“……the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bond should not therefore be denied on flimsy grounds but on real and cogent grounds that meets the high standards set by the Constitution.”

16. Section 123 A of the Criminal Procedure Act sets out some of the criteria the court will consider in an application for bond. The Section provides:-(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.

17. At paragraph 4. 9 of the Bail and Bond Policy Guidelines, the factors to be considered in determining what compelling reasons are includes:-a.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.b.The strength of the prosecution case.c.The character and antecedents of the accused person.d.The failure of the accused person to observe bail or bond terms.e.The likelihood of interfering with witnesses.f.The need to protect the victim or victims of the crime.g.The relationship between the accused person and the potential witnesses.h.The best interest of child offenders.i.The accused person is a flight risk.j.Whether the accused person is gainfully employed.k.Public order, peace and security.l)Protection of the accused persons.

18. It is therefore clear that the right to bond is not absolute because where there are compelling reason, the said right may be curtailed. It is the duty of the prosecution to establish that compelling reasons exist. The primary consideration in an application for bond is that the accused person will turn up for his trial. In this case, the prosecution alleges that the applicants are a flight risk especially considering the fact that their father has already been convicted of an offence of murder arising from the same murder.

19. It is not denied that the applicant’s father is already serving sentence having been charged in Criminal Case No. 10 of 2019 Republic versus Lukas Machera for the murder of the deceased. According to the investigating officer, the Applicants had gone underground. I do agree with the prosecution that the conviction of Lukas Mwita Machera for offence of murder for twenty (20) years in Criminal Case No. 10 of 2019 is indeed an incentive for the applicants to try and flee from prosecution.

20. According to the prosecution, the applicants character and antecedents disentitles them to be granted bond because they disappeared from home upon the death of the deceased. Accused 1 told the court that he was working on Nairobi from July 2019 to June 2023. The certificate of service indicates that he worked with Longham Security Company from September 2019 till June 2023. The offence he faces was committed in July 2019. It means that John Mwita was in Nairobi after the murder was committed and it is therefore possible he was at home at the time the offence was committed and took off thereafter to go and seek employment. Similarly Jacob was arrested in Nairobi in 2023. It is however unknown when he started living in Nairobi. The investigating officer did not however attempt to demonstrate the efforts he had made to arrest the applicants since 2019 to 2023 and therefore cannot say with certainty that both applicants were away from home for all that period.

Interference with witnesses. 21. Without witnesses feeling that their safety is guaranteed, they will not attend court for fear of attack or even injury to themselves. That is why parliament saw the need to enact the Victims Protection Act which at paragraph 20 provides for protection of witnesses as follows:-“Under the law, the court has a duty to give effect to the rights of victims expressed in section 10 of the Victim Protection Act as follows:10(1)A victim ha s a right to(a)be free from intimation harassment fear, tampering bribery corruption and abuse;(b)Make their safety and that of their family considered in determining the condition of bod and released of the offender.c)Have their property protected.

22. The Key witnesses herein are said to be the deceased’s mother, wife and brother. The reasons that the witnesses would be interfered with are due to the fact that one Lukas Machera is already serving sentence for the same from offence and it would not be beyond the Accused to want to protect the same from happening to them by having the witnesses not testify. Although the investigating officer did not produce any tangible evidence on interference, the court called for a Social enquiry report and it is reported therein that there had been threats to the witnesses by the applicants and that the deceased’s family has even has moved away to Rongo. If witnesses move away from their homes, then they are unlikely to be traced during the hearing. I am satisfied that there is sufficient evidence of interference with witnesses.

23. The prosecution also alleged that the applicants proximity to the border makes them to be high flight risk.

24. The court cannot bury its head in the sand like the proverbial ostrich and deny that cannot happen. The applicants hail from Kuria area which borders with Tanzania and it is not uncommon to have suspects fleeing to Tanzania and vice versa. The fact that the applicants’ father was convicted for the same offences gives them reason to be flight risk.

25. Having considered the evidence on record and the social enquiry report. I find that the prosecution has demonstrated that there are compelling reasons to deny the applicants bond. Bond is denied. The applicants will remain in remand during their trial. The court will try to fast track the hearing of the case.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 14TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEIn presence of; -Ms. Kaino for the stateAppellant AbsentMs. Emma/ Phelix –Court Assistant