[2022] KEHC 13113 (KLR)

Njeru v Republic (Criminal Case E029 of 2021) [2022] KEHC 13113 (KLR) (Crim) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 13113 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E029 of 2021

DO Chepkwony, J

July 21, 2022

Between

Onesmus Muriithi Njeru

Accused

and

Republic

State

Ruling

1. The accused person Onesmus Muriithi Njeru, 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:-'On the April 10, 2021 at Muthurwa Market, in Kamukunji Sub-county, within Nairobi County murdered Amos Wandera Ochieng'.

2. On April 28, 2021, the accused person was arraigned before court and he pleaded 'not guilty' to the charge on September 21, 2021 upon being assigned counsel and found fit to plead. On November 15, 2021, the accused through his advocate, M/S Makokha made an oral application to court seeking for the accused to be admitted to bail pending trial. The prosecution has no objection to the release on condition that a pre-bail report is filed in court.

3. The law that governs the grant or otherwise of bond/bail is provided for under article 49(1)(h) of the Constitution of Kenya, 2010 and section 123A of the article 49(1)(h) 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.

4. Section 123A of the Criminal Procedure Code states that:-Excepion to right to bail.(1)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 fulfilment of obligations under previous grants of bail; and,d.The strength of the evidence of his having committed the offence;(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person-a.Has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;b.Should be kept in custody for his own protection'

5. Under Paragraphs 4 and 9 of the Bail & Bond Policy Guidelines, it is restated that:-'In terms of substance, the primary factor considered by the courts in bail decision making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face sine the promulgation of the Constitution of Kenya, 2010 is determining the existence of compelling reasons for denying an accused person bail particularly in serious offences'.

6. In the case of Republic –vs- Joseph Thiongo Wawere & 17 Others[2017] eKLR, it was held as follows:'The constitutional standard for denying bail is 'compelling reasons' test. The burden is on the prosecution to establish the existence of the 'compelling reasons' that would justify denial of bail. Our emerging jurisprudence on the question is clean as to the kind of evidence needed to establish the compelling reasons; the evidence presented must be 'cogent' very strong and specific and that mere allegations, suspicions, bare objections and insinuations will not be sufficient'.

7. From the above cited provisions and case law, it will be seen thus, the purpose of granting bail is to secure the attendance of the accused in court from the safety of his own home environment.

8. In this case, the bail assessment report has provided the court with useful information to guide it in making an appropriate determination. I have perused the probation officer’s pre-bail report and note that the probation officer interviewed the accused, his family, the victim’s family and other community members.

9. The victim’s family is not opposed to the accused being granted bond since it is his constitution right, as long as he will not interfere with witnesses or harm their family. It is not lost to this court that the family of the victim has been pained by the loss of their kin.

10. The family members of the accused are willing to mobilize resources to secure the accused’s release and are willing to accommodate him at their home in Ngaitethei Village in Tharaka Nithi, if released on bond. They have prayed that he be released on reasonable bond terms.

11. I also note from the report that the accused has no previous criminal records and neither is the community opposed to his release on bond.

12. From the foregoing, there being no objection to the accused be released on bond by the prosecution coupled with the favourable pre-bail probation report, I find that there are no compelling reasons why the accused’s application should not be granted.

13. In the circumstances, the accused/applicant’s application is allowed on the following terms:-a.The accused/applicant may be released on a bond of Kshs 500,000/= with one surety of a similar amount to be approved by the deputy registrar of the court.b.In the alternative, the accused person may be released on a cash bail of Kshs 200,000/=.c.The accused person/applicant is directed not to interfere with the witnesses and or members of the victim’s family.d.The accused person/applicant to provide full particulars and details of place of abode and work of the surety and contact person.e.Failure to abide by any of the above conditions, the bail terms will stand cancelled.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JULY 2022. DO CHEPKWONYJUDGEIn the presence of:M/S Gikonyo for the StateM/S Makokha counsel for accusedAccused – presentCourt Assistant - Gitonga