[2019] KEHC 5117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC. CRIMINAL CASE NO.37 OF 2019

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

VERSUS

ABEL MOGAKA..........................................................ACCUSED

RULING

1. ABEL MOGAKA (the accused/applicant) is charged with murder Contrary Section 203 of the Penal Code as read with Section 204 Penal Code that on 18th May 2019 at Annex area in Eldoret South Sub-county within Uasin Gishu, he murdered CALVINS NGAIRA MUSACHI.

He was arrested on an undisclosed date and presented before court although the pre-bail report does not disclose the date. He has been in remand custody since then, and now prays that, pending trial, this court admits him to bail.

2. Mr. Miyienda (his counsel) informed this court that the accused is an advocate of the High Court, and infact practices in Eldoret in the firm of Seneti and Oburu Advocates.

3. In opposing bail, Miss Oduor on behalf of DPPsubmits that the ground is very hostile, as emotions are high and the accused is likely to interfere with the key witnesses who are his friends. The DPP also points out that the accused’s own safety cannot be guaranteed, so it would be in his interest that he remains in custody.

4. When the bail application was made, this court directed that a pre-bail report be compiled and filed. The pre-bail report dated 17. 6.2019 prepared by Y.K.A Chepkwony indicated that the deceased’s family is in shock and still in mourning (that is the most natural human reaction to a situation of this kind but more so because the deceased was an only son, and had just been admitted to the bar). Certainly hopes, dreams and all things positive have been dashed by that sudden unexpected death, and under rather distressing circumstances.

The deceased’s family feel that;

“it was too soon for the accused to be granted bond, considering the fact that they could easily meet in the streets of Eldoret. According to them, the likelihood of the accused interfering with witnesses cannot be ruled out, as a number of witnesses are known to him.”

These views are shared by the chairperson of Law Society of Kenya North Rift who pointed out to the Probation Officer that the incident involved two members of his society (the deceased being a lawyer as well) and that this had placed the legal fraternity in disrepute.

He too felt that the incident is still fresh in the minds of the deceased’s family and members of the public, and his safety cannot be guaranteed. He was of the opinion that at least one or two witnesses ought to testify before bail can be considered.

On account of this, despite the accused’s family being willing to stand surety, and also express remorse and even trying to ameliorate the situation this message of condolence (sent by a card) and chipping in on the funeral expenses, the Probation Officer says it is critical to look at the concerns and opinion exhibited by the deceased’s family as well as the Law Society of Kenya chair.

5. To this Mr Miyienda responds that the accused being a practicing lawyer understands the law, and it would be absurd for him to interfere with witnesses. That in any event that assertion has no iota of support, and the accused is in a position where he fully understands the consequences of attempting of interfering with witnesses.

6. As regards his security, counsel is categorical that the claim is made so as to deliberately intimidate the applicant and lead him to cow in, against his pursuit for bail.

He states;

“The high emotions of the family of the bereaved is to be expected – that is human – but only God can quench those emotions.”

Counsel acknowledges that the family of the deceased and accused’s reside both in Eldoret and Kitale – but wonders what would be so inherently wrong about the accused meeting them on the streets. He urges the court to consider the period the accused has been behind bars and beseechs this court not to deal with the issue of bail on grounds that the accused is an advocate, but to consider what the Constitution and the law require.

7. Apparently Mr. Magut who is counsel watching brief for the deceased’s family also added his voice to the objection of the accused’s release on bail. He argues that although bail is a constitutional right, the court must consider the circumstances surrounding the offence and that even the accused’s father has acknowledged that if holding his son in remand for a little longer would bring healing to the deceased’s family then he has no objection. He also reiterates the issue of no guarantee of accused’s security.

8. Under Art 49 (2) Bail is a constitutional right which an accused person is entitled to while awaiting trial unless there are compelling reasons. The reason for bail is based on the principle of presumption of innocence under Art 50(2) of the Constitution and must never be used as a tool for punishing the accused person.

9. See Art 10(2) (a) internal conviction on Civil and Political rights which requires that accused persons be subjected to separate treatment appropriate to the status as un-convicted persons.

Bail exists simply to procure the accused persons release from prison custody, and to secure his attendance in court when required by setting certain terms, conditions and undertaking.

10. When bail is opposed, the burden of demonstrating what constitutes compelling reasons, rests with the prosecution. Some of the consideration which would amount to compelling reasons;

a) The likelihood of an accused fleeing the court’s jurisdiction

b) The likelihood of an accused interfering with prosecution witnesses

c) The accused will endanger a particular individual’s safety,

d) His release will be a hindrance to investigations or the prosecution process.

Where is the evidence that the accused presents any of these risks?

The investigating officer has not sworn any affidavit claiming there is likelihood of interference of any witnesses by the accused, this application is from the victim’s family and the Law Society of Kenya chair. The “vulnerable” witnesses are not mentioned, nor is their relationship with the accused disclosed- the only term used is that they are known to the accused. That cannot be enough – it is necessary that the prosecution demonstrate whether the accused stands in a position of authority or influence so as to claim such application – especially because the investigating officer has not made any such claims.

11. The 2nd issue raised is that the victim’s family feels it is too soon to release the accused person – that holding him in police custody seems to sort of quench the coals of anger. I have noted in the earlier part of the ruling that what the victim’s family feel is the most natural human reaction BUT it must not be lost to ALL, bail is not to be viewed in the context of punishing an accused person – the presumption of innocence remains until the trial is concluded. It is not alleged that the accused is a danger to any witness or member of the victim’s family, what is being alleged is that if released, then there is a likelihood of retaliation. Who would be carrying out the retaliation? It is not said that the member of the Law Society of Kenya, or persons who live in the neighbourhood have expressed hostility. The report clearly indicates that the high emotions stem from the injured and hurt feeling of the victim’s family.

12. I will say this – whereas the State has a duty to prosecute those who commit crimes which may entail limiting their individual’s right to liberty, the State also has a duty to ensure public safety between the time of arrest and trial of an accused person, and to uphold the integrity of the criminal justice system. Accused is not said to be a threat to public safety. This court is being pushed to believe that;

“If you release the accused person, we cannot guarantee his safety.”

Yet the very same constitution places a duty to protect the security and life of all, irrespective of status. This translates to one thing, if anything adverse were to happen to the accused once he is released on bond, then the prime suspects should be members of the victim’s family – because they have said as much, because they want him held in remand a little longer to quench their anger, to make them feel vindicated.

That is not how justice operates, and I would not subscribe to that approach in this instance.

13. Consequently I find merit in the application and order that accused may be released on bond of Kshs.1,000,000/- plus one surety of similar amount.

Of course it is in his own interest that he helps his safety even as he counts on the state security. To that extent I will direct that for the next three months the accused stay away from Eldoret Town. He will however be required to report to the DCIO Eldoret West every 2 weeks until further orders are given.

DATED, SIGNED and DELIVERED at ELDORET this 26th day of June2019.

H. A. OMONDI

JUDGE