[2022] KEHC 1609 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO E 062 OF 2021

PC KHALIF ABDULAHI SIGAT……………...……..………1ST ACCUSED/APPLICANT

PC JOSEPH ODHIAMBO SIRAWA…………………..…..…2ND ACCUSED/APPLICANT

PC EDWARD KONGO ONCHONGA……………..…..….....3RD ACCUSED/APPLICANT

PC JAMES MULI KOTI…………………..……………….…4TH ACCUSED/APPLICANT

PC NELSON NKANAE…………….………………...….…..5TH ACCUSED/APPLICANT

VERSUS

REPUBLIC ……………………..…………………..……..PROSECUTOR/RESPONDENT

RULING ON THE REVIEW APPLICATION

The accused have applied for review of the order of this court (Bwonwong’a, J,) dated 29th November 2021, which denied them bail pending hearing and determination of the murder charge against them in this court. In their applications the applicants seek the following orders.

1. Spent.

2. An order to revisit, vary, and/or vacate its orders of 29th November 2021 that denied the applicants bail pending their trial.

I will first set out the case of the 1st accused/applicant followed by the applications of the other applicants.

The application of the 1st accused/applicant

The application of the 1st accused is supported by 16 grounds that are set out on the face of the notice of motion dated 17th December 2021; with the major grounds being the following.

The 1st applicant is charged with murder; whose trial will take a long time to complete due to the court’s work load. The 1st applicant has a terminally ill father who requires both his moral and financial support; which function he cannot discharge while in custody.

Furthermore, the 1st applicant has a fixed abode in Garissa county and has a brother in Nairobi who will host him until this matter is heard and determined. There is no evidence linking the 1st applicant to the allegations of interference with witnesses and those threats have not been reported in any police station.

The investigations have been completed and the 1st applicant has nothing to interfere with and he is willing to abide with all conditions the court may impose. The offence was allegedly committed in Mombasa which is 800 kms away while the trial is taking place in Nairobi and the 1st applicant is not ready to set foot in Mombasa. The witnesses are in Mombasa and it is possible for the state to offer protection to all its witnesses.

Additionally, the constitutionally recognized presumption of innocence operates in favour of the applicant.

The applicant is not a flight risk.

It is for the foregoing reasons that the 1st applicant requests this court to review the denial of his bail.

The 1st applicant has also supported his application with a 24 paragraphs supporting affidavit whose averments are set out as grounds in the notice of motion which I have declined to reproduce them herein.

The submissions of the 1st accused/applicant

Messrs Ayora Magati & co. Advocates have filed written submissions in support of the application of the 1st applicant. Based on article 49 (1) (h) of the Constitution of Kenya counsel has submitted that the offence of murder is bailable and unless there are compelling reasons an applicant should not be denied bail. And by virtue of those constitutional provisions this court should exercise its inherent powers to grant bail to the 1st applicant.

Secondly, counsel has submitted that the court relied on the replying affidavit of the investigator (No 00295 John Maranya) of the Independent Policing Oversight Authority (IPOA) to deny bail to the applicants. He submits that IPOA has an interest in the matter and has urged the court to relook at the report and find that it is based on speculation, fear and suspicion.

Furthermore, the replying affidavit which the court relied upon is hearsay and does not pass the test of providing compelling reasons as provided for the 2010 Constitution. Counsel has further submitted that the threatened witnesses as per the replying affidavit have not reported the said threats to IPOA or to the police station or ODPP; with the result that the report is based on fear, speculation and suspicion.

Counsel has also submitted that since the investigations have been completed the 1st applicant will not be a position to interfere with the investigations.

The 1st applicant’s counsel has urged the court to reject the sub missions of the respondents for the foregoing reasons.

The probation officer’s report

At the request of counsel for the accused/applicants, this court ordered for preparation of probation officer’s report; which was filed in court on 25th January 2022. The said report duly took the views of the family of the deceased; which views generally indicate the impact of the death of the deceased upon the family who are the victims. The brother of the deceased (Mr. Elias Otieno) on behalf of the family of deceased stated that:

“….The family of the deceased strongly objects the accused and his co-accused being released on bail/bond. They fear that the accused persons are highly likely to negatively influence or interfere with the quest for justice. The victim’s family holds the accused persons had demonstrated intent and ability to impede the investigations. They singled out threats to any one that pursued justice for the late Caleb Espino. The deceased’s brother and his family now live in fear for their lives. They considered the release of the accused persons will potentially intensify that fear.”

On the other hand, the views of the police in Mombasa County and Changamwe police station where the accused were serving told the probation officer that the accused have been interdicted and some were transferred to other stations. They have urged the court to release the accused on bail.

The probation officer concluded by recommending in his report that the accused be admitted to bail with stringent conditions that will ensure the concerns of the victims and the witnesses.

The case for the 2nd, 3rd and 5th accused/applicants.

These applicants in their application sought and obtained a probation officer’s report in support of their application; whose major contents and recommendation have been noted in the foregoing paragraphs. They have also applied for an order directing the investigating officer namely Maranya of the Independent Police Oversight Authority (IPOA) to be cross examined in addition to all those who are referred to in his replying affidavit. The finding of this court in that regard appears below in this ruling.

The consolidated submissions of Messrs Musyoki Mogaka & Co. Advocates dated for the all applicants and those of Messrs B.M. Kanyiri & Company Advocates dated 28th January 2022 for the 2nd, 3rd and 5th accused/applicants.

These submissions at a glance raise the issue of legal representation in the two applications which I consolidated in the interests of expedition of this case, since they raise common issues. I have specifically excluded the application of the 1st applicant which is on its own as outlined in the preceding paragraphs.

Messrs B.M. Kanyiri & Company Advocates have submitted that this court has jurisdiction to entertain and determine this application for review of its ruling in support of which they cited section 123 of the Criminal Procedure Code (Cap 75) Laws of Kenya and articles 49 and 50 of the 2010 Constitution of Kenya.

They also submitted that the ground upon which bail was refused namely allegations of interference with witnesses, did not meet the required threshold for refusal of bail. They have faulted this court for relying on the unsubstantiated affidavit evidence of the investigating officer namely one Maranya in finding that three people who looked like police officers went to the funeral of the deceased.

Counsel cited Republic v Robert Zipporah Nzilu (2018), in which the court held that it had power to review the bail terms imposed upon the applicant therein. That court further held that for bail to be denied there must be compelling reasons, which must be forceful and convincing.

Messrs Messrs Musyoki Mogaka & Co. Advocates on behalf of all the applicants submitted that this court should entertain the instant application that is dated 6/12/2022 since the accused/applicants are entitled to bail unless there are compelling reasons to deny them bail. Counsel have also submitted that the prosecution is relying on the baseless allegations that the accused/applicants are a flight risk and are likely to interfere with witnesses in opposing the application for bail.

In respect of changed circumstances, that warrant review of the refusal of bail for the accused/applicants, counsel have also submitted that they are relying on the above pre-bail report of the probation officer; who they also want to cross examine in addition to the investigating officer.

Furthermore, counsel has submitted based on the decision of this court (Muriithi, J) in Republic v Naomi Echesa Sanya & Another v Republic (2014) e-KLR in which that court held in part that an unsuccessful applicant for bail may repeat his application for bail if his circumstances have changed in such a manner as to favour his release on bail. That court went further and also held that there was nothing in the provisions of article 49 (1) (h) or section 123 of the Criminal Procedure Code to suggest that once a court refuses or grants bail, it becomes functus officio. The other authorities cited by counsel are in relation to the absence or presence of compelling reasons to deny or grant bail; and for that reason I decline to cite them.

Counsel has also submitted that the accused/applicants have been custody for a long time due to covid-19 and they play no role in respect of the delay in the trial process.

Finally, counsel has submitted that it is in the interests of justice that the applicants be granted bail.

The submissions of the respondent (the Republic).

Ms Maina, counsel for the respondent has opposed the application for review of the order denying the grant of bail to the accused/applicants. She has pointed out that there was real apprehension founded upon the affidavit of investigator (No 00295 John Maranya) of the Independent Policing Oversight Authority (IPOA) that the accused/applicants were likely to interfere with witnesses.

Furthermore, she has also submitted that the victims family are also opposed to the release of the accused/applicants on bail; a matter in respect of which counsel cited the decision of this court (Lesiit, J as then was) in Republic v Leliman & 4 Others (2019)e-KLR in which that court held that interference with witnesses covers a wide range which can take place immediately on commission of the offence, during investigations or during the trial. That court added that interference may be committed by any person including the accused, the witnesses or other persons.

Furthermore, counsel submitted that the family of the victims strongly object to the release of the accused/applicants on bail; since they demonstrated their intention and ability to interfere with witnesses.

Counsel has also submitted that the trial of the accused is fixed for hearing on 11th, 12th, 13th April 2022 when the key witnesses are expected to testify. She further submitted in that regard that it is in the interests of justice that they testify before any decision on bail is made.

She has therefore urged the court to deny the release of the accused/applicants on bail.

The submissions of counsel for the victims

Counsel for the victims has opposed the review application. He has submitted that the accused/applicants have not demonstrated that there has been a change of circumstances.

On the pre-bail report counsel has submitted that it is not relevant; since it has not shown a change in the circumstances of the application

She has therefore submitted that the present application is without merit and should be dismissed.

Issue for determination

I have considered the affidavits of the accused/applicants, their submissions and the authorities cited. I have also considered the submissions of the respondent and counsel for the victims.

I find the following are the issues for determination.

1. Whether this court has jurisdiction to entertain and determine the application.

2. Whether the accused/applicants have made out a case for the grant of the orders sought.

Issue 1

After full consideration of the applicable law and the submissions of the parties, I find that this court has jurisdiction to entertain and determine the application. In this regard, I find the decision of this court (Bwonwong’a, J) in Nadipo Mohamed Abshir v Republic, in Nairobi High Court Criminal Case No 16 of 2019 to be persuasive in which that court pronounced itself in the following terms:

“I further find that since the case is still pending trial in this court, the provisions of article 165 (3) (a) of the 2010 Constitution of Kenya which vests in this court unlimited jurisdiction in both civil and criminal matters is applicable.

I find from the authorities cited and by virtue of the provisions of article 165 (3) (a) of the 2010 Constitution of Kenya that this court has the jurisdiction to hear and determine the instant application.

I further find that this court is not functus officio.”

Issue 2

Furthermore, I find that the jurisdiction of this court to review its own order arises where circumstances have changed after the date when the challenged order was made. Those circumstances include cancellation of bail for breach of the bail terms by the accused/applicant or where the sureties have withdrawn. See the decision of this court (Muriithi, J) in) in R v Diana Suleiman Said & Another (2014) e-KLR.

In the instant application, I find that the parties have not demonstrated any change in the circumstances of the case. The probation officer’s report does not contain any change of circumstances. The application by Messrs Musyoki Mogaka & Co. Advocates that an order be made to call and have the investigator (No 00295 John Maranya) of the Independent Policing Oversight Authority (IPOA) to be cross examined does not amount to a change of circumstances and is a matter that should have been raised in the previous application and not in the instant application. It should be borne in mind that litigation must come to an end and cannot be done through the process of re-litigating issues that have previously been judicially resolved on the merits.

The accused/applicants have merely re-argued and raised the same averments as in the previous applications that gave rise to the order sought to be reviewed. Stated differently, the accused/applicants are inviting this court to sit in appeal over its own judgement (order) which in principle is fundamentally impermissible.

In the premises, I find that the accused/applicants application fails and is hereby dismissed in its entirety.

Ruling signed, dated and delivered in open court at Nairobi this 3rd day of March 2022.

J M BWONWONG’A

JUDGE

In the presence of-

Mr. Kinyua: Court Assistant

Mr Ayora for the 1st accused/applicant

Mr. Muriuki for the 2nd, 3rd, and 5th accused/applicants

Ms Maina for the Respondent

Mr. Omayio holding brief for Mr. Omari for the 4th accused/applicant.

Ms. Nzwii for IPOA

Mr. Oketch holding brief for Mr. Ngoloma for IMLU