[2023] KEHC 19532 (KLR)

Mghondi & another v Republic (Criminal Revision E009 & E010 of 2023 (Consolidated)) [2023] KEHC 19532 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEHC 19532 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Revision E009 & E010 of 2023 (Consolidated)

GMA Dulu, J

July 5, 2023

Between

Pantaleo Ngati Mghondi

1st Applicant

Jumatano Mwanyumba Tole

2nd Applicant

and

Republic

Respondent

Ruling

1. Before me are two applications, one filed by Pantaleo Ngati Mghondi, and the other filed by Jumatano Mwanyumba Tole, both filed in March 2023 under section 264 and 357(1) of Criminal Procedure Code and article 47 and 50 of the Constitution. This ruling is in respect of both applications.

2. Both applications are for bail pending hearing and determination of Voi Magistrate’s Criminal case No E563 of 2022, in which four (4) people were charged with dealing in wildlife trophy of an endangered species contrary to section 92(2) of the Wildlife Conservation and Management Act 2013. The other two co-accused persons however pleaded guilty.

3. In the grounds to both applications, it has been stated that their oral applications for bail/bond before the trial court were severally declined on the grounds that they were not first offenders, contrary to the legal principle that an accused person is presumed innocent until proved guilty.

4. Each of the two applications was filed with a supporting affidavit sworn by the respective applicant, amplifying the grounds of the application.

5. Each of the two applications is opposed through grounds of opposition filed by the Director of Public Prosecutions in the following terms:-1. The applicant has not demonstrated any peculiar and exceptional circumstances to warrant the orders sought.2. The applicant is a repeat offender and there is likelihood of reoffending if released on bail/bond.3. The offence for which the applicant is charged is serious. A conviction and heavy sentence is likely to follow.

6. The applications were canvassed through written submissions. In this regard, I have perused and considered the submissions filed by each of the applicants and the submissions filed by the Director of Public Prosecutions.

7. The Director of Public Prosecutions has relied on section 123 of the Criminal Procedure Code (cap 75), and the Judiciary Bail/Bond Policy in opposing the application. The Director of Public Prosecutions also has emphasized that the applicants are repeat offenders and are likely to commit similar offences and jump bail, if released.

8. The applicants on their part, have relied on Constitution which provides that they are innocent until proved guilty, and which confers on them the right to be released on bail unless there are compelling reasons for denial of bail. Pantaleo Ngati Mghondi says also that he is a Kenyan citizen holder of identity card number 2xxxx3 from Ovasia village Mwakitau and Jumatano Mwanyumba Tole also says that he is a Kenyan citizen holder of identity card number 2xxxx5 from Majengo village Mwatate sub county in Taita Taveta county.

9. Taking into account that the Constitution under article 49, provides that an arrested person is entitled to be released on bail/bond unless there exist compelling reasons for denial of bail, courts have stated repeatedly that the burden lies on the prosecution to demonstrate the compelling reasons for denial of bail.

10. In my view, the commission of a similar offence previously though a factor for consideration is not on its own a compelling reason for denial of bail, as the current charge is a mere allegation on which an accused person is still constitutionally presumed innocent until proved guilty. Each case has to be considered on its entire facts.

11. The Director of Public Prosecutions has also contended that the statutory sentence for the offence herein, is severe and that the accused persons might as a result abscond. Again, on that point, such is not perse a sufficient ground to deny bail without more. The entire facts and circumstances of each case have to be taken into account in determining, whether or not to grand bail. That is why, even in murder cases where the sentence is death, accused persons have still been granted bail by the courts.

12. The Director of Public Prosecutions has further stated that if the applicants are released on bail, they might be tempted to commit other similar offences. Again, in my view that alone, cannot be a compelling reason to deny them bail.

13. I note further that the Probation Officer Mr John Irungu in a pre-bail report on Pantaleo Ngati Mghondi dated December 21, 2022 filed in the trial court, concluded as follows:-“Your honour considering that the accused is a family man, he is well known by the area assistant chief and he has a surety, he may be accorded lenient bond terms. A cash bail of Kshs 50,000/= or bond of Kshs 100,000/= would be affordable.”

14. With regard to Jumatano Mwanyumba Tole the same Probation Officer in a pre-bail report filed in the trial court dated December 19, 2022 concluded as follows:-“Your honour, considering his advanced age he may be considered for release on bond or bail terms of at least Kshs 50,000/=”

15. In my view, from the entire facts and circumstances of this case, the prosecution has not demonstrated compelling reasons for denial of bail to the two accused persons herein. This court is thus entitled under the provisions of section 362 and 364 of theCriminal Procedure Code (cap 75), to review the orders of the trial magistrate declining to grant the two accused persons bail.

16. I thus review and set aside the trial court’s orders of denial of bail, and instead order as follows:-1. Each of the two applicants will be released on signing a bond of Kshs 100,000/= with one surety of similar amount.2. In the alternative, each of the two applicants may be released on payment of cash bail of Kshs 70,000/3. Each of them will attend all mentions and hearing of the case before the trial court until finalization of the same.4. The magistrate’s case herein will be mentioned on July 12, 2023.

DATED, SIGNED AND DELIVERED THIS 5TH DAY OF JULY 223 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Both applicantsMr. Sirima for StateMr. Otolo court assistant