[2022] KEHC 2285 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. E002 OF 2022

REPUBLIC...........................................................................PROSECUTOR

-V/S-

ABDUL MAJID NAGIB alias MAJID.......................................ACCUSED

RULING

1. The Accused/Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code cap 63 Laws of Kenya.

2. On 12th January 2022, the accused person through his advocate Mr. Obonyo made an application for reasonable bail terms on the basis that the victim is the accused person’s father and relatives are not opposed to his release. That the accused is a Kenyan citizen and has fixed abode and as such he is not a flight risk.

3. Ms. Kambaga, the Senior Prosecution Counsel appearing for the state responded to the application that pre-bail report be filed before orders are granted. She stated that bail is a constitutional right but it would be in the accused person’s interest that social inquiry is conducted. Ms. Kambaga opposed the said bail application.

4. The Pre-bail Report was filed on 10th February 2022 with the following conclusion and observation: -

“From the inquiry conducted, and as observed, the accused person has lived outside the country for a long time. He is a holder of a valid passport and can easily move in and out of the country. His close family members are outside the country and he lacks sufficient social ties and family support within the country. In respect to these, he is likely to face psycho-social challenges when out of custody with no one near to help and assist him. The family members did not give any proposed surety and despite being willing to bail him, they haven’t acquired a surety. They had promised to look for one and no response was received from them and follow up interview wasn’t successful due to the reason that they reside outside the country. Going back to the Bondeni community may likely heighten the tension since the community is still hostile towards the accused person.”

5. Ms. Kambaga – the prosecution counsel opposed the application for bail by making reference to page 3 on ‘The family’s role on court attendance and compliance with bail/bond’ and page 5 on ‘The attitude of the victim’s family’ as follows: -

The family’s role on court attendance and compliance with bail/bond: -

‘The close family members are residing, working and living outside the country. They intend to seek a Kenyan surety but are yet to confirm of having acquired any. They hope having acquired a surety, they will ensure the accused person attends court as required and adheres to court orders. In addition, they promise they will be supportive and to continue offering the needed psycho-social and economic support to enhance favourable grounds towards the accused person’s faithful court attendance. They intend to relocate him to live outside Mombasa and they are ready to cater for logistics and also reminding him on every court attendance date throughout the trial period.’

The attitude of the victim’s family: -

‘The victims were reached during the inquiry. They were interviewed and they share a deep anger and looked still traumatised as they give their inputs on the bail and bond to the accused person. They feel that if he is released, he can be lynched since tension is still high in the community. They registered their fear with the admission of the accused person on bail/bond. They feel that since he has been living abroad, he can easily fly outside the country, jump bail and lead to injustice since he can disappear easily without a trace. Their opinion is that he can be remanded until determination of the trial so that justice is achieved.’

Analysis and Determination

6. The cardinal consideration in granting bail/bond is to ensure that the accused person avails himself in court whenever he is required. Additionally, the bail/bond terms must also be pegged on the consideration that the accused person is presumed innocent until proven guilty, and reasonable bail terms where no compelling reasons have been given.

7. This court acknowledges the position that the Applicant is presumed innocent until proven guilty in respect to being granted reasonable bail/bond terms. Article 50(2)(a) of the Constitution of Kenya, 2010 provides that: -

‘Every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.’

8. In determining the Accused person’s right to be admitted to bail, this court relied on the holding in the case of Andrew Young Otieno v Republic (2017) eKLR,where it was stated as follows: -

“This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to a denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining bond terms to be imposed…”

9. This court has established that the Accused person intends to live in Juja within Kiambu County where he has friends. However, he did not disclose who the friends are and the said friends could not be reached for interviews. This court has established further that since he came back to the country from Dubai, he was living with his father, the deceased herein, while the rest of his family members are living and working in Dubai, South Korea and the United States of America. Therefore, if he is granted bail, there will be no one to ensure that he attends court. From the Pre-bail Report, this court noted that residents of Bondeni, where the accused person had been living with his late father were deeply angered by the death of the deceased as a result of which they do not trust the accused person. Therefore, his security may not be guaranteed as there may be revenge or retaliation attacks by family members related to the father’s side. Additionally, there was contradiction in the statements of the Accused person’s family members who stated that they would wish to have him admitted to bail/bond but feared that he can be lynched or the Accused can disappear easily without a trace.

10. In conclusion, the Accused person’s application for admission to bail is therefore disallowed. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 14TH DAY OF FEBRUARY 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of: -

Ogwel- Court Assistant

Ms. Ongeti for State

Mr. Obonyo for the Accused

HON. LADY JUSTICE A. ONG’INJO

JUDGE