[2024] KEHC 12166 (KLR)

Republic v Abdille (Criminal Case E008 of 2024) [2024] KEHC 12166 (KLR) (9 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12166 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Case E008 of 2024

JN Onyiego, J

October 9, 2024

Between

Republic

Prosecution

and

Omar Dubow Abdille

Accused

Ruling

1. The accused herein is charged with the offence of murder contrary to section 203 as read out with section 204 of the penal code. Particulars are that on the 3rd day of July 2024 at Boka area, Bangale sub-county, jointly with others not before the court murdered Abdile Nadhir.

2. Having denied the charge, a plea of not guilty was entered. Subsequently, the accused prayed for release on bail pending trial. Consequently, the court ordered for a pre-bail report which was filed on 25th September 2024 thus advising against the release of the accused on bail as the victim’s family and the community are still bitter hence prone to revenge. The report recommended that the issue of bail be deferred for some time to enable tempers cool down.

3. M/s Omwega counsel for the accused asserted that the accused is entitled to bail since it is his constitutional right under Article 49(1) (h). She urged that the accused is not a flight risk and that he be released on bail preferably cash bail of Kes 100,000.

4. Mr. Kihara prosecution counsel opposed the application thus relying on the affidavit of IP Eliud Kimtai sworn on 24-07-24 stating that the accused is a flight risk. That after committing the offence on 24-07-2024, he fled from his home for Isiolo where he was arrested on 01-09-2024. That the community is still bitter given that the offence occurred within the family in which the accused killed the husband of his former wife. Learned counsel opined that there is a possibility of retaliation and that for the accused’s own security, he should remain in custody for some time.

5. I have considered the application herein and the objection thereof. This court is being asked to release the accused person on bail pending trial. It is trite that bail is a constitutional right which is provided under Article 49(1)(h). The same is anchored on the principle that an accused person is innocent until proved guilty. It is also intended to curb against detention before trial.

6. Article 49(1)(h) of the Constitution provides 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.

7. Section 123A of the Criminal Procedure Code gives the parameters for the grant of the right to bail as follows:(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. [ Also see Waititu vs Republic [2021] KESC 11 (KLR) and Kenyan Judiciary’s Bail and Bond Policy Guidelines issued in March, 2015 at pages 16 to 19].

8. It is true that the right to bail is not absolute and where there are compelling reasons, the said right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. Nevertheless, to release or not to release an accused person on bail is a question of discretion of the presiding judge or magistrate judiciously exercised taking into account that an accused person is innocent until proved guilty. See Charles Owanga Oluoch v The DPP (2015)e KLR where the court held that the right to bail is at the discretion of the court and is not absolute.

9. It is trite that there is no definite definition as to what constitutes compelling reasons. The mere fact that the offence with which an accused is charged carries a serious sentence is not necessarily a compelling reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond or fail to appear for trial. Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend court and whether or not the free and fair trial can be achieved notwithstanding the release of the accused on bond.

10. In determining whether or not a free and fair trial is possible, the Court ought to consider the circumstances of the accused as well as that of the potential witnesses. However, since the release on bond or bail is a constitutional right, it is upon the prosecution to satisfy the Court why a free and fair trial is not possible if the accused is so released. Thus, the prosecution must satisfy the court that there exist compelling reasons which justify the denial of bail or bond. [ See Mohamed Abdurrahman Said & Another vs Republic [2012] eKLR].

11. In the instant case, the main grounds for opposing bail is the fact that the accused is a flight risk and that the community and the victim’s family is bitter hence likely to revenge. For the community and the victim’s family to be bitter is understandable because innocent life was lost. It has been demonstrated by way of the pre-bail report that retaliation is imminent hence the need to secure the accused’s safety. This can be achieved by holding the accused for sometime to enable tempers cool down.

12. As to the question of being a flight risk, it was averred that after the commission of the offence, accused fled his home to Isiolo where he was arrested. At the same time, the pre-bail report indicates that accused is a pastoralist who moves from place to place in search of grass. This lifestyle would explain why he was in Isiolo and not for purposes of running away. The pre-bail report states that accused person is married and has seven children. This would explain why accused was occasionally spotted at his home. In my view, there is no watertight ground to believe that accused is a flight risk.

13. Taking into account the grounds advanced in opposing bail, vis a vis the accused’s constitutional right to bail, I am convinced that for the accused’s own safety and societal expectation, it is not safe to release the accused on bail at this moment. Accordingly, accused shall remain in custody pending trial. He shall be at liberty to renew the bail application after sometime.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF OCTOBER 2024. J. N. ONYIEGOJUDGE