[2023] KEHC 26899 (KLR)

Njoroge v Republic (Criminal Case E020 of 2022) [2023] KEHC 26899 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26899 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case E020 of 2022

DO Chepkwony, J

November 16, 2023

Between

Cyrus Ngatia Njoroge

Applicant

and

Republic

Respondent

Ruling

1. What is before the court is the Notice of Motion application dated 4th July, 2023 which seeks the following orders:-a.That the Applicant/accused be released on bond and or bail pending the hearing and determination of this case on reasonable terms.

2. The Application is based on the Supporting Affidavit of Jane Wanjiku Ngochi sworn on 12th July, 2023, by the advocate of the accused person and the following grounds:a.That the offence which the accused is charged is bailable under the law.b.That it is the right of the accused herein to be released on bond/bail.c.That in the interest of justice that the application be allowed as prayed.

3. The court called for a social inquiry to be conducted on the accused and a pre-bail report was filed on 18th April, 2023, wherein it has been stated that the accused has never been charged in a court of law, he comes from Laikipia County and was working in Kiambu County prior to his arrest. The report stated that the accused person comes from a humble background and that his siblings cannot raise bond/bail but that they would mobilise resources if the same is granted. In the same report, the victims of the deceased were fearful that if the accused is granted bail/bond terms he is likely to interfere with witnesses and intimidate them. It is averred that the accused has never been charged for any offence in a court of law.

4. On 27th September, 2022, the prosecution Counsel informed the court that neither himself nor the investigating officer is opposed to the granting of bail and bond terms to the accused.

Analysis and Determination 5. The court has considered the application by the accused, the pre-bail report and finds that although bail/bond is a right granted by the Constitution it is not an automatic right as the court has to consider whether there are any compelling reasons not to grant the same. Under Article 49(1)(h) of the Constitution, the law states that:-"An accused person has the right …(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released."

6. What should be considered is if the reasons tendered are compelling enough to warrant the denial of bail and bond terms. The Court in the case of Republic –vs- Joseph Thiongo Waweru & 17 Others [2017] eKLR defined compelling reasons 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 clear as to the kind of evidence needed to establish the “compelling reasons”: The evidence presented must be “cogent, very strong and specific evidence” and that mere allegations, suspicions, bare objections and insinuations will not be sufficient.”

7. There are various factors which ought to be considered in bail and bond application as provided for under Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, provides these factors which include:-(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.

8. In this case, the court finds that there are no compelling reasons why the accused should be denied bail. The sentiments that the accused may interfere with the witnesses if released has not been substantiated. The court notes too that the accused does not have any criminal history and has a known abode in Laikipia.

9. In the circumstances given the nature of the offence the court proceeds to allow the Notice of Motion application dated 4th July, 2023, on the following terms:-a.The accused person may be released on bond in the sum of Kshs.500,000. 00 with one surety of a similar amount.b.In the alternative the accused may be released on a cash bail in the sum of Kshs.300,000. 00. c.The accused person apart from providing better particulars of his actual place of abode and place of business to the Deputy Registrar, to equally do so for his person of contact.d.Accused to attend court as and when required.e.Failure to observe the terms and conditions set out in Paragraph No.(c), (d) and (e) will result in the bond being cancelled.f.Mention on 6th November, 2023 before the Deputy Registrar for pre-trial directions and confirm hearing dates.g.Hearing on 13th February, 2024.

10. It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 16TH DAY OF NOVEMBER, 2023. D. O. CHEPKWONYJUDGE