[2020] KEHC 1409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL REVISION CASE NO.E038 OF 2020

MOHAMED AHMED BISHAR..............................................APPLICANT

NASANGA IBRAHIM.............................................................APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS....................RESPONDENT

RULING

By a letter dated 24. 9.2020, the 2 applicants MOHAMED AHMED BISHAR and NASANGA IBRAHIM have petitioned this court seeking that this court do admit the applicants to bail pending the determination of the case they jointly face before the subordinate court, being Milimani Chief Magistrate’s criminal case number 2104 of 2020. That on 21. 7.2020 the trial magistrate, in a ruling delivered on the same date, denied both the accused bond. That the said trial court dismissed the applicant’s plea for bail on 2 grounds, that they are facing serious offences which attract serious penal consequences, and secondly, that accused 2 (2nd applicant) is of foreign nationality (Ugandan). The court had also considered the impact of terrorism activities in the country and globally.

The said petition went further to state that being aggrieved of the finding of the trial court as above, the applicants made an application for revision of the said orders. And in its ruling on the application for revision, the court again dismissed the applicants plea for bail while maintaining the same reasons for the said denial.

The applicants have thus moved this court seeking the revision of the orders of the trial court and pleading that this court do admit the 2 applicants to bail-bond pending the trial and determination of their case. Mr. Chacha Mwita appeared as counsel for the applicants while Ms. Odhiambo appeared for the state/Respondent.

While basing his submissions on the statements on the petition as above, counsel for the applicants submitted that the applicants are of advanced ages of 60 and 68 years and of poor health. It was maintained that the trial court erred in considering the issue of public security over and above the health of the applicants. That all offences are bailable and seriousness of the offence can not on its own be considered to be a compelling reason. Counsel went further to note that the applicants are facing 6 counts under section 29 of the Explosives Act which attracts a sentence of 7 years, which counsel submitted is not serious as to be an incentive for the applicants to abscond.

Lastly, it was submitted that whereas 1st applicant is a Kenyan with fixed abode, the 2nd applicant is a Ugandan a member of the East Africa Community. Counsel relied on the following authorities.

- Republic Versus Danson Mgunya and Another (2010) eKLR

- ODPP Versus Sakina Mariam Abdalla (2019)eKLR

- Republic Versus Diana Salim Suleiman (2014)eKLR

- Republic Versus Muneer Harron Ismail & 4 others (2010)eKLR.

That in all those cases, bail was granted.

In opposing this application, counsel for the state, submitted that the applicants were first denied bail on the basis of the seriousness of the offence i.e that they attract upto a maximum of 7 years imprisonment in case of a conviction. That the explosives recovered can cause seriousness damage and harm. Counsel denied that age of the applicants ought to be considered in the application for bail.

I have considered the 2 rival submissions of the parties herein. Bail as right is enshrined at Article 49(1)(h) of the constitution which states;

Article 49(1)(h) – 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.

This provision clearly dictates that the right to pre-trial bail is for all accused persons irrespective of the seriousness of the charges they are facing. The right however, is not an absolute right. Some may be denied should the prosecution prove the existence of any compelling reason. To me, this simply mean factors that are grave enough as to justify the denial of the right to bail. Judge F. Gikonyo in Bungoma HCCR. Case No. 55/2009, republic versus Joktan Mayende and 3 others,described it thus;

“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 meet the high standard set by the constitution.

As to what constitutes compelling reasons, the bail bond policy guidelines at paragraph 4. 9 gives the various factors that the court may consider amongst these are; -

- The nature of the charges

- Strength of the prosecution case

- Seriousness of the sentence in case of conviction.

- Character and antecedents of the accused.

- Likelihood of interference with prosecution witnesses or investigations.

- Likelihood of accused to absconding.

- National security law and order

- Accused’s own safety.

Indeed these are the factors that the courts have considered in determining whether or not compelling reasons have been shown by the prosecution as to make the court deny the accused the right to pre-trial bail (see Republic Versus Danson Mgunya & Another (2010)eKLR, cited by the applicant herein).

In our case, the objection of the prosecution has been on the following grounds; -

i) The seriousness of the offence changed and the passible sentence.

ii) Public security.

iii) That 2nd applicant is not a Kenya

On the first ground of the seriousness of the offence and the strict sentence in case of conviction, it is conceded by both sides that the applicants have been charged with up to 6 counts under the Explosives Act. The prosecution has shown photographs of the recovered exhibits. The maximum sentence for the offences charged is 7 years imprisonment. Without a doubt, these are serious charges and the maximum sentences provided for in the law are in no way simple. A sentence of 7 years imprisonment is a severe and serious sentence. The exhibits, being explosives and part of the same are capable of causing unimaginable harm and damage.

The question is however, whether this alone can be a ground for denial of bail. As shown above, the constitution at Article 49(1)(h) grants the right of bail to all accused persons irrespective of the nature of the charges that they face in court. The seriousness of the charges that the applicant’s herein are facing herein, cannot by itself be a compelling reason.

On the 2nd limb of national security, the case of the prosecution is based on intelligence report leading to the recoveries and arrest of the applicants. This court duly appreciates the fact the fact that not all the details of the intelligence information may be laid bare in public. At the same time, the court is also acutely aware of the devastating effects and consequences that this country has endured in recent times as a result of acts of terrorism. The court cannot wish this away. If it were to treat the issue of acts of terrorism lightly, the court would be failing in its social responsibility and duty to promote social harmony and peace and order in society. The aspirations of the people of Kenya are clearly spelt out at the preamble to the constitution of Kenya i.e

We the people of Kenya,

- Committed to nurturing and protecting well-being of the individual, the family, community and the nation.

The court, being an institution created by the people (Constitution), must be at the forefront of the protection of the community. There is no doubt on the nature of the material recovered herein. Both the applicants have conceded to the said recovery. It has been deponed that they are high explosives used for warfare and not commercial usage. Obviously, there items are capable of causing serious harm and damage.

This court is therefore obligated to consider the parallel issues herein of national security and the individual freedoms of the 2 applicants. On whose sides would the wheels of justice roll in this matter? Respectfully, I agree with the finding of the trial magistrate on this issue. That the public interest herein far outweighs the private rights of the applicants as to their liberty.

And therein lies the distinction between this case and the cases cited by the defence counsel of Republic Versus Murieer Harron Ismail & 4 others (2010)eKLR, Republic Versus Sakina Mariam Abdalla (2019)eKLRand Republic Versus Diana Salim Sulkeiman (2014)eKLR. In all these cases, the prosecutions case was based on fears of intended terrorism acts. In the instant case, the exhibits recovered proves that the prosecutions case in opposing bail herein goes well beyond mere fears.

As to the last ground of objection that the 2nd applicant is a Ugandan national, this is again agreed by both sides. There is also no doubt that he is in Kenya on an expired temporary movement permit no 224103. I have perused the same exhibit KKI(b). It is dated 9. 9.2019 and same was valid for 1 month from the date of issue. It is not indicated by either party with whom or where the 2nd applicant has been staying while in Kenya all this time.

It has been held severally that the primary factor considered by courts in granting bail is whether the accused will appear for trial if released on bail. In the case ofRepublic Versus Godfrey Madegwa and 6 others (2016)eKLR,the honourable E. C. Mwita J. Held

“The primary purpose for bail is to secure the accused’s attendance to answer to the charges’.

This means that if the circumstances of the case point to a possibility that the accused would not turn up in court for his trial, then the court would not grant bail to the accused. The 2nd applicant herein is Ugandan. He has no known or declared place of abode in Kenya. His movement permit has also long expired. These factors point to the fact that if released, accused 2 is likely to abscond. And if he absconds it would not be possible to track him down and bring him back to the court to face his accusers.

The defence counsel submitted that both the accused ought to be released on bail on account of ill health. These were submissions from the bar with no evidence produced in support of the same. It is the belief of this court that arrangements on managing the health conditions may as well be implemented in remand conditions.

At 60 and 68 years old respectively, the 2 applicants are indeed of advanced ages. This calls for an expeditious determination of their case. I accordingly direct the trial magistrate to ensure that the trial of the case of the applicants in commenced and completed without delay.

In view of the above observation, I am convinced that the prosecution has proved the existence of compelling reasons strong enough as to justify a denial of the right to bail to the accused in this matter. The application (petition) of the applicants dated 24. 9.2020 is accordingly dismissed. The 2 applicants (accused) shall be remanded in custody pending the determination of their case.

HON. JUSTICE D. OGEMBO OGOLA

1st December 2020

Court:

Ruling read out on-line in the presence of Mr. Chacha Mwita for applicants and Mrs. Odhiambo for the state.

HON. JUSTICE D. OGEMBO OGOLA

1st December 2020

Mr. Chacha:

We have a mention on 10. 12. 2020 for disclosures and hearing on 16. 12. 2020.

HON. JUSTICE D. OGEMBO OGOLA

1st December 2020

Mr. Odhiambo:

That is confirmed

HON. JUSTICE D. OGEMBO OGOLA

1st December 2020

Court:

The fixed dated for mention and hearing before the trial courts have been noted. As ordered above, parties are encouraged to proceed expeditiously on this matter.

HON. JUSTICE D. OGEMBO OGOLA

1st December 2020