[2022] KEHC 16077 (KLR)

Nalianya v Republic (Criminal Case E015 of 2021) [2022] KEHC 16077 (KLR) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16077 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Case E015 of 2021

GL Nzioka, J

December 6, 2022

Between

Joseph Simiyu Nalianya

Applicant

and

Republic

Respondent

Ruling

1. The accused has applied for bond pending the hearing and determination of the case herein. He avers through an affidavit he has sworn that he was arrested when he was on his way to the police station and therefore he was not on the run as alleged.

2. That, he has a reliable social and family members to bail him and are ready and willing to secure their securities for his bail terms. Further he avers that he will not interfere with witnesses if released on bond. That, he is ready and willing to relocate from Naivasha jurisdiction or Nakuru County so as not to interact with the state witnesses. In addition he will abide by the conditions that, the court will impose in the bond terms.

3. However, the application was opposed vide a replying affidavit sworn by No 81100 PC Solomon Kirwa, the investigating officer in the subject matter. He avers in a nutshell that, the applicant was arrested at Karagita Township in Naivasha Sub-County with the help of the members of the public while on the run and a blood stained phone, suspected to be the deceased recovered from him. Therefore he is likely to abscond if released on bond. Furthermore none of his family members have showed up to familiarize themselves with investigating officer thus raising suspicion if at all he has reliable social and family background to assist in tracing him if released on bond and bail. The investigating officer further avers that, the suspect is likely to interfere with witnesses as the family members of the deceased are well known to him.

4. The application was further opposed by one, Emily Nafula Wanjala, the sister of the deceased, who deposes that, the accused has been cohabiting with the deceased since the year 2020 and had separated in the month of April 2021. That he was already on the run when he was arrested at Karagita bus station. That he is likely to interfere with witnesses, especially her as an eye witness thus she feels threatened. She prays that the accused should not be released on bond.

5. In the same vein the application was opposed by the deceased’s father, one Ernest Wachilonga Wanyama vide a replying affidavit sworn on November 30, 2022. He too opposes the release of the accused on bond, on the ground that, he is likely to vanish if released on bond and that, the court should not release the accused on bond until the case is heard and determined.

6. Pursuant to the application for release on bond, the court ordered for a pre-bail report to be availed. I have gone through the said report and I note that, the report indicates that, the family of the accused do not own any property that can be used as security in case he is released on bond terms that calls for the same. That, his security is not guaranteed at Karagita area, where the offence was committed. It also indicates that, the deceased’s family are opposed to his release on bond, as he will interfere with witnesses especially the deceased’s sister, and may also abscond the trial. In conclusion the probation officer states that, the accused poses flight risk as he attempted to run away from the scene of incident. That there is also a grey area on where he would be accommodated if released on bond or bail. As such there could be a challenge in bond or bail supervision.

7. Having considered the application, the affidavit in support thereof and replying affidavits I find that, indeed the accused has a Constitutional right to bail pursuant to the provisions of article 49(1)(h) of theConstitution of Kenya. He is also presumed to be innocent until proven guilty as stipulated under the provision of section 50(2) of theConstitution and reflected under the Bail and Bond Policy Guidelines. Pursuant to article 49(1)(h) of theConstitution of Kenya an accused person’s right to bail are recognized under section 123(A) of the Criminal Procedure Code ,(chapter 75) of the laws of Kenya, which states as follows;-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 fulfillment of obligations under previous grants of bail; and;(d)The strength of the evidence of his having committed the offence;

8. From the aforesaid it is clear, that the seriousness of the offence and the probable sentence to be meted out together with the likelihood of interference of witness or temptation to jump bail are some of the very factors to take into account when considering the application for bail. In the instant matter, it is clear that, the offence the accused is charged with is a serious offence and based on the circumstances of the case, the sentence can be quite serious. In addition, his social background or family ties is fluid as none of his family members are ready to vouch for him. Furthermore his security is not guaranteed if he does not relocate from Naivasha Sub-County or Nakuru County. Finally there is apprehension that he may interfere with witnesses. In that, case I decline to allow the bond or bail application.

DATED, DELIVERED, AND SIGNED ON THIS 6TH DAY OF DECEMBER, 2022. GRACE L NZIOKAJUDGEIn the presence of:-Mr Gichuki for the accusedMs Kirenge for the respondentMs Ogutu- Court Assistant