[2022] KEHC 15886 (KLR)

Republic v Barak (Criminal Case E046 of 2022) [2022] KEHC 15886 (KLR) (Crim) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15886 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E046 of 2022

K Kimondo, J

December 2, 2022

Between

Republic

Prosecutor

and

Kevin Oduor Barak

Accused

Ruling

1. The accused prays for bail pending trial.

2. His learned counsel, Mr. Nzomo, first made the application on 17th August 2022. The republic has opposed the application through a replying affidavit sworn on 19th October 2022 by the investigating officer, Sergeant Simon Simiyu.

3. The objections are three-fold: Firstly, that the accused has no fixed abode and is therefore a flight-risk; secondly, that there are vulnerable witnesses or real likelihood of interference with witnesses; and, thirdly, that his release “is likely to cause unrest among the residents of Korogocho area” where the deceased resided.

4. The accused in turn lodged an affidavit sworn on 16th November 2022 to counter the averments by the investigating officer. He avers that the allegation that he will interfere with state witnesses is borne out of conjecture. He is also ready to relocate from the locus in quo and to find gainful employment as a mason. Lastly, he deposed that he will be housed by his sister in Dandora; that he does not hold a passport; and, is therefore not a flight-risk.

5. On 22nd November 2022, I heard further submissions from the learned counsel for the accused and the republic.

6. In a synopsis, learned counsel for the accused submitted that bail is a constitutional right; that the accused is deemed innocent at this stage; and, that in all the circumstances of this case, that there are no compelling reasons for denial of bail.

7. Learned Prosecution counsel, Ms Kigira, relied fully on the replying affidavit that I highlighted above. She further implored the court to strike a fair balance between the rights of the accused, the family of the victims and the course of justice.

8. I should add that following the order made on 17th October 2022, the court has now received a pre-bail report dated 22nd November 2022 under the hand of Agnes Ayuma, Probation Officer. I will deal with it in the course of this ruling.

9. I take the following view of the matter. The accused faces the grave charge of murder. The Director of Public Prosecutions informs the High Court that on the 4th July 2022 at Githaturu, Korogocho area, Starehe Sub-County within Nairobi County he murdered Medrine Magova alias Mama Manu.

10. It is a truism that the accused is presumed innocent. Under Article 49 (1) (h) of the Constitution, as read together with section 123A(1) of the Criminal Procedure Code, he is entitled to bail unless there be compelling circumstances.

11. Regarding the phrase, compelling reasons, I am well guided by the decision of Gikonyo J in Republic v Joktan Mayende & 3 others, High Court, Bungoma Criminal Case 55 of 2009 [2012] eKLR where the learned judge stated-But more light is shed by the Black's Law Dictionary 7th Edition. And accordingly, the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.

12. The overarching objective of bail is to ensure the accused attends trial. See Michael Juma Oyamo & another v Republic, Court of Appeal, Nairobi Criminal Appeal 113 of 2018 [2019] eKLR; Muraguri v Republic[1989] KLR 181;R v Fredrick Ole Leliman & 4 others, Nairobi High Court Criminal Case 57 of 2016 [2016] eKLR.

13. When I juxtapose those principles against the facts here, I find further as follows. Two witnesses have testified in this matter. The deceased was cohabiting with the accused. One of the witnesses (PW2) is their minor child aged 9 years. He is a vulnerable witness but his evidence and that of his guardian (PW1) have been taken. Some of the remaining witnesses are neighbours of the accused in Korogocho area.

14. From the pre-bail report, the family of the deceased is angst at the loss of their loved one and oppose bail. In addition, they say that their security would be jeopardized by the release of the accused. I am alive that the Victims Protection Act now requires that the views of the victim’s family be considered at this stage.

15. From the two affidavits and the pre-bail report, I am satisfied that the accused has no formal employment. He is however an experienced mason and can fend for himself. What is worrying is that the social report concludes that he has weak family ties. Those interviewed said “they had no way of guaranteeing the court” that the accused would attend his trial.The report alsopaints him as “aggressive” with indications of “drug and substance abuse”.

16. The accused maintains that he can be housed by his sister, Cynthia Atieno, in Dandora. It would be unjust to deny him bail merely because he has no formal employment or that he exhibits aggressive traits suspected to flow from substance abuse. But I will set four stringent conditions to guarantee his attendance to court and to shield the victim’s family and the remaining witnesses from any threats or interference.

17. Firstly, the accused may now be released upon executing a cognizance in the sum of Kshs 500,000 (five hundred thousands) together with one surety of a similar sum. The surety shall be examined and approved by the Deputy Registrar of this Court.

18. Secondly, the accused shall not have any direct or indirect contact with PW1, PW2 or any of the remaining witnesses until the conclusion of his trial. For the avoidance of doubt, the minor (PW2) shall continue to be under the care of his present guardian.

19. Thirdly, the accused shall relocate and must not set foot at Korogocho area in Nairobi, without prior permission of the court.

20. Fourthly, he must attend a special mention before the Deputy Registrar of the Criminal Division once every three months commencing 2nd January 2023 and until the conclusion of the trial or further orders of the court.

21. In default of any of the four conditions above, his bond shall stand cancelled; and, the surety shall be called to account.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF DECEMBER 2022. KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of-Accused.Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.