[2024] KEHC 10967 (KLR)

Mungai v Republic (Criminal Revision E380 of 2023) [2024] KEHC 10967 (KLR) (20 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10967 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E380 of 2023

RN Nyakundi, J

September 20, 2024

Between

Solomon Macharia Mungai

Applicant

and

Republic

Respondent

Ruling

1. What is pending before me for determination is a notice of motion dated 27th November, 2023 expressed to be brought under the provisions of Art. 19, 22, 25, 29, 39, 48, 49, 50 and 159(2) of the Constitution as read with Section 123 and 123A of the Criminal Procedure Code and the bail and bond policy guidelines. The applicant seeks from this court a review of an order of denial of bail by the Chief Magistrates court as issues by the Hon. CM Wattimah on the 12th October, 2023 directing that the accused remains in custody to await trial. That the court be pleased to release the accused on reasonable bail terms.

2. The application was based on grounds that on 14th September, 2023 the accused was charged before Hon. C.M. Wattimah in Eldoret Chief Magistrate’s court over accusations of incest contrary to section 20(1) of the Sexual Offences Act.

3. It was further stated that the accused has been incarceration in Eldoret remand Centre since he took plea on the 14th September, 2023. As a result of the failure by the accused to be released on bail, the accused person continues to languish in jail with his youthful years going to waste as well as his young family going through a difficult moment characterized by lacking of basic life necessities and security of a father yet a guilty verdict has not been entered against the accused.

4. The Respondent filed written submissions on 6th June, 2024. In essence, counsel for the Respondent argued that the offence of incest is a serious offence which carries the maximum sentence and a minimum of ten years’ imprisonment. Counsel argued that the accused and the victim are closely related, being father and daughter and therefore the state is apprehensive that he might interfere and or intimidate the victim.

5. The Respondent is also apprehensive that having closed its case, and the respondent having shown his unwillingness to prosecute his case he is likely to abscond the proceedings at the lower court if he is granted bail/bond. In concluding, the Respondent submitted that the application is not merited and therefore should be dismissed accordingly.

Determination 6. Art. 49(1)(h) of the Constitution of Kenya provides 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 not to be released.”

7. The Constitution does not define the term “Compelling reasons”. But, generally a compelling argument would be something that is in accordance with the fact or some reality. In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term “compelling reasons” as follows: -“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. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.”

8. The High Court has jurisdiction to review a trial court’s decision on bail and its conditions as provided under section 123 (3) of the Criminal Procedure Code as follows:“123. Bail in certain cases(1)When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.(3)The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.[Act No. 22 of 1959, s. 13, Act No. 6 of 1976, Sch., Act No. 13 of 1978, Sch., Act No. 19 of 1984, Sch., Act No. 19 of 1985, Sch., Act No. 7 of 1990, Sch., Act No. 14 of 1991, Sch., Act No. 5 of 2003, s. 71. ]”

9. In deciding whether or not to review a trial court’s decision on bail in terms of section 123 (3) of the Criminal Procedure Code, the High Court, as in all exercise of power of appellate interference with the discretion of a trial court, must be satisfied that the decision of the trial court is plainly wrong or, has misdirected itself in failing to take into account a material factor or taking into account an immaterial factor and it has resulted in a miscarriage of justice, as expressed by the Court of Appeal for East Africa in the context of a civil case of Mbogo v. Shah (1968) EA 93 as follows:“A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice”.

10. In addition, the Judiciary’s Bail and Bond Policy Guidelines at p.9 paragraph 3. 1 (d) underpins the right to reasonable Bail and Bond terms as follows:“d)“Right to Reasonable Bail and Bond Terms:Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.”

11. The Bail and Bond Policy Guidelines under section 4. 9 further lists the factors to be considered in determining what compelling reasons are and includes; -a)The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guiltyb)The strength of the prosecution casec)Character and antecedents of the accused persond)The failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bonde)Likelihood of interfering with witnessesf)The need to protect the victim or victims of the crime from the accused persong)The relationship between the accused person and potential witnessesh)Child offendersi)The accused person is a flight riskj)Whether accused person is gainfully employedk)Public order, peace or security.l)Protection of the accused person.

12. The import of the aforementioned provisions is that the right to bail is not absolute and where there exist compelling reasons, the said right can be limited. However, the burden is on the prosecution to establish the existence of the compelling reasons and to the required standards. I am therefore to examine whether the prosecution has presented compelling reasons to warrant denial of bail/bond to the accused.

13. In the trial court’s ruling, the court noted that the trial was at an advanced stage already and the sentiments from the victim were not favourable given that she was already in hospital at the time awaiting delivery. Without delving much into the report and the impugned ruling, I am guided by the Bail and Bond Policy Guidelines wherein various factors have been identified for courts need to consider in granting or denying bail and bond terms. Certainly, the circumstances of this case fit within the prescribed conditions to deny bail. First, the accused person and the victim share a father-daughter relationship and the prosecution expressed the fear that there is a likelihood that the accused person might interfere with the potential witnesses. The other consideration that fits the circumstances of the instant case is that the accused person is a child offender and there is need to protect the victim from the accused person.

14. The long and short of it is that this court is inclined not to review the said bail and bond terms on the said grounds as expressed by the respondent, acknowledging the fact that the trial is already at a stage where the Applicant/accused person has been put on its defence. I see no reason why this court should interfere with the decision of the trial court in which the case ought to run through till the end. The application for review dated 27th November, 2023 therefore stands dismissed.

15. It is so ordered.

DATED AND SIGNED AT ELDORET THIS 20TH DAY OF SEPTEMBER, 2024In the Presence:Mr. Mugun for the stateThe accused person...........................................R. NYAKUNDIJUDGE