[2022] KEHC 15006 (KLR)

Ng’iendo v Republic (Criminal Case E074 of 2021) [2022] KEHC 15006 (KLR) (Crim) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 15006 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E074 of 2021

DO Chepkwony, J

May 16, 2022

Between

Lincoln Abraham Ng’iendo

Applicant

and

Republic

Respondent

Ruling

1. The accused, Lincoln Abraham Ng’iendo, has been charged with one count of Murder contrary to Section 203 as read with Section 204 of the Penal Code.The particulars of the offence are that:-“Between 20th – 22nd day of October 2020 at Clay City in Kasarani Sub- County, within Nairobi County murdered Eizabeth Kiloko Nthei”.

2. The accused pleaded not guilty to the charge on 9th November, 2021. He has filed an application before this court dated 19th November, 2021 seeking to be released on and/or admitted to bail/bond on reasonable terms pending trial.

3. In the affidavit in support of the Motion, the Applicant has deposed that he is a total orphan with relatives both in Nakuru and his rural home but has a fixed abode in Kimbo. The Applicant has also depend that prior to him being arraigned in court, he voluntarily turned up when required to assist in investigations. He further states that it is his constitutional right to bail/bond and there are no compelling reasons for the court to deny him release on bail. He has given assurance that he is ready to abide by the conditions that may be imposed by court if released.

4. The state opposed the application through a Replying Affidavit sworn on 29th November, 2021 by IP Benjamin Chelanga of DCI Headquarters. Therein he has deposed that in October, 2020, the accused and the deceased were staying together at Genesis Apartments before relocating to unknown place and that after commission of the offence, the accused escaped to Tanzania only to resurface ten months later at the same apartments where he was hosted by the caretaker. According to IP Chelanga, the accused has no known fixed abode hence he is a fight risk and more so having worked as a driver and therefore knows many escape routes along the border. He has also deposed that the seriousness of the offence and the severity of the sentence provided for by the law may be an incentive for the applicant to abscond trial.

5. The application was canvassed by the parties by way of oral submissions on 28th February, 2022 whereby Mr. Mbati, the Applicant’s counsel submitted that the Applicant has a fixed abode in Kasarani and Homabay with relatives, brothers and sisters. He also submitted that the accused person has a right to be released on bond as guaranteed under Article 49(1)(h) of the Constitution unless there exist compelling reasons to warrant the denial of bond, which reasons have not been demonstrated by the prosecution through any evidence.

6. Counsel has placed reliance on the cases of Jahedra Kirugi –vs- R, R –vs- Godfrey Ndegwa & 6 Others, R –vs- Sarah Wairimu Karioko Cohen and R –vs- Danson Kabuge Mwangi [2016]eKL, where the court re-emphasised the right of an accused person to be released on bond pending trial. He urged that the primary consideration in an application for bond is always whether or not the accused person will attend trial on a date appointed by court.

7. He also invited the court to consider the general principles and objectives of granting bail in the Bail and Bond Policy guidelines by the Judiciary, which are: the presumption of innocence until one is proven guilty by the court upon consideration of evidence: an accused person’s right to liberty since the Applicant had been in custody for over 5 months: and a balance of the rights of an accused person and the interest of justice.

8. M/S Gikonyo, counsel for the State expounded on the averments made by I.P Benjamin Chelanga in the Replying Affidavit and reiterated that the prosecution had demonstrated that there were compelling reasons in this case to warrant denial of bond for the accused. First, she submitted that the applicant is a flight risk being that after the murder of the deceased, an offence he was suspected of committing, he escaped to Tanzania only to resurface back to Kenya after 10 months when he was arrested. Additionally, the Investigating Officer had reliable information that the Applicant is making plans to escape if released.

9. She submitted further that the accused has no fixed abode neither in Kasarani nor Homabay since he had moved out from Genesis apartments where he used to reside. On witness interference, she submitted that there is real apprehension since the Applicant had threatened the victim’s family and sought ransom from them, failure of which he would kill the deceased. She also submitted that the sentiments of the victim’s family ought to be taken into consideration since they are still grieving for their loved one whom they never had an opportunity to give a proper burial. The deceased’s body was disposed of as an unclaimed body by Nairobi Metropolis.

10. As for the claim for being in detention for a long period, she submitted that it was necessary since the lower court had granted custodial orders so that exhumation could be done and also for a DNA carried out on the remains of the deceased. Finally, on preparation for defence, the prosecution’s counsel submitted that the applicant had been supplied with the committal bundles and also has legal representation therefore he can still prepare while in custody. She thus has urged the court not to release the accused on bail/bond. She also requested for a pre-bail report to be filed, which the court called for.

11. In response, the Applicant’s counsel reiterated that the prosecution has not placed any evidence before the court to prove that the accused is a flight risk and had interfered with witnesses.

Determination 12. I have carefully considered the application, the rival affidavits filed on record and the oral submissions by both counsel on behalf of the parties together which all the authorities cited. I have also taken into account the filed pre-bail report. Having done so, I find that the only issue arising for determination is whether the Applicant has established satisfactory reasons to warrant him be released on bond and/or bail pending trial.

13. Article 49(1)(h) of the Constitution, 2010, 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”.

14. There is no dispute that bail is a right for all persons charged before court irrespective of the charge facing them. The only rider under Article 49(1)(h) of the Constitution is the existence of compelling reasons for an accused person not to released on bail/bond. However, the court has discretion to grant or refuse bail depending on the circumstances of each case. The court is required to take into consideration the settled principles of the law when determining whether or not to grant bail, pending the hearing of a criminal case or pending the hearing of an appeal.

15. The principles to be considered by this court in determining whether or not to grant bail were set out in the case of Ng’ang’a –vs- Republic [1985] KLR 451, where Chesoni J, as he then was, stated:-“The court, in exercising its discretion to grant bail to an accused person under Section 123(1) or (3) of the Criminal Procedure Code (cap 75), should grant bail to the accused person unless it is shown by the prosecution that there are substantial grounds for believing that:i.The accused will fail to turn up at his trial or to surrender to custody;ii.The accused may commit further offences; oriii.He or she will obstruct the course of justice.iv.The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider;v.The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;vi.The strength of the prosecution case;vii.The character and antecedents of the accused;viii.The likelihood of the accused interfering with prosecution witnesses.”

16. In applying the above principles to the peculiar circumstances of this case, what I need to determine is whether the prosecution has sufficiently proved that compelling reasons exist in this case to justify the denial of the accused’s right to bond pending trial.

17. The prosecution submitted that the applicant is a flight risk having escaped to Tanzania after the death of the deceased, which offence he had been suspected of committing and that he has no fixed abode. This claim has been disputed by the Applicant who claims that he has fixed abode in Kasarani and Homabay, with relatives, brothers and sisters. From the findings in the Probation Report, it has been shown that the applicant has no fixed abode in either Nairobi or in Kisumu County as claimed. Additionally, it has been reported that none of his siblings have stated that they are willing to accommodate him if released. Further, the report indicates that the Applicant escaped to Tanzania and only came back to Kenya after his deportation for being an illegal migrant. Given the foregoing, I am of the view that the prosecution has demonstrated that indeed the Applicant is a likely flight risk and his abode is unclear.

18. The second ground raised by the prosecution is on witness interference. The prosecution submitted that there is evidence by the investigating officer that the Applicant issued threats to the deceased’s family by seeking for ransom money from them or else he kills the deceased. This was denied by the Applicant’s counsel. The pre-bail report indicates that upon the commission of the offence, the applicant threatened the victim’s family by indicating that he knew where they lived and could harm them if they did not obey his extortion demands. In my view, this is sufficient demonstration that the Applicant is likely to threaten the witnesses in this case which amounts to a compelling reason to deny him release on bail.

19. Finally, on the issue that the investigating officer has reliable information that the applicant will abscond the court’s jurisdiction if released on bail, it is my humble view that the Respondent has not placed any evidence before this court for it to make a conclusive finding on the same.

20. All in all, from the foregoing, it is clear that there exist strong compelling reasons why the applicant should not be released on bond. I thus proceed to dismiss the Applicant’s application dated 19th November, 2021 for release on bond/bail.

It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS 16TH DAY OF MAY, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Ogweno counsel for StateMr. Ombati counsel for ApplicantCourt Assistant - Gitonga