[2025] KEHC 1893 (KLR)

Republic v Bashir (Criminal Case E011 of 2024) [2025] KEHC 1893 (KLR) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 1893 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case E011 of 2024

RB Ngetich, J

February 6, 2025

Between

Republic

Prosecution

and

Ayub Bashir

Accused

Ruling

1. The accused Ayub Bashir has been charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence being that the accused person on the 1st day of November,2024 at Kampi Samaki village, Akorian Sub-location in Baringo North Sub- County within Baringo County jointly murdered Magdaline Chesang.

2. The accused denied the charge and the prosecution did not oppose the accused being released on bond but the court called for a pre-bail report to be filed to assist the court in determining the bond. The report was duly filed as directed.

Prebail Report 3. From the report, the accused is 41 years old. He dropped out of school in class 7 due to lack of school fees. Further, his parents separated in the year 2000 making the family unstable. He is a trained driver and at the time he was arrested, he was working at Soy Safari lodge as a gardener. He is from the same clan with the deceased and they were living peacefully but their relationship got strained after the incident herein.

4. He got married in the year 2005 and had 2 children but he separated from his wife in the year 2014 due to infidelity and he took custody and care of his son while his wife took custody of the daughter. He later remarried and was blessed with three children and was living with his family at Kampi Samaki village at the time of his arrest. The accused admits abusing changaa and busaa but has no known previous criminal records and therefore has no history of absconding court.

5. From the report, the accused has heavy parental responsibility and has a fixed abode and therefore not likely to abscond while on bond/bail. The area chief who is a brother to the deceased is not opposed to accused’s release on bond but with a surety. Accused’s family members are willing and ready to stand surety for him and ensure he attends court until the matter is concluded.

Determination 6. Bail is a constitutional right of every citizen. Article 49(1)(h) of the Constitution is explicit that, unless there is some compelling reason, an accused person, be he a citizen or foreigner, ought to be released on bail, as a matter of right, pending the hearing and determination of his/her case. It provides that:“An arrested person has the right … 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. Moreover, by dint of Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.

8. Accordingly, Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates that:(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—i.the nature or seriousness of the offence;ii.the character, antecedents, associations and community ties of the accused person;iii.the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;iv.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—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; should be kept in custody for his own protection.

9. And, in the Bail and Bond Policy Guidelines, it is restated as a general guideline in Paragraph 4. 9 that:-“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences.”

10. The Guidelines then offer the following non-exhaustive factors for consideration in bail applications:a.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.b.The strength of the prosecution case.c.The character and antecedents of the accused person.d.The failure of the accused person to observe bail or bond terms.e.The likelihood of interfering with witnesses.f.The need to protect the victim or victims of the crime.g.The relationship between the accused person and the potential witnesses.h.The best interest of child offenders.i.The accused person is a flight risk.j.Whether the accused person is gainfully employed.k.Public order, peace and security.l.Protection of the accused persons.

11. The accused person faces the serious charge of murder but he is still deemed innocent until proven guilty. Under Article 49 (1) (h) of the Constitution, he is entitled to bail pending trial unless there are compelling circumstances. See Muraguri v Republic [1989] KLR 181, Republic v Elias Kipkemoi, Eldoret High Court Criminal Case 42 of 2014 (unreported).

12. The overarching objective of bail is to ensure the accused attends his trial. Relevant matters to be considered by the court include the nature of the charge, the likely sentence; previous criminal records, the views of the family of the victim, the possibility of interference with witnesses, the temptation to abscond and the safety of the accused.

13. From the sentiments of the area chief and accused’s family, the accused has fixed aboard and his family are willing to stand surety form him. No reason has been advanced to deny accused bond. From the foregoing, I am inclined to release accused on bond.

Final Orders: - 14. Accused may be released on bond of kshs 500,000 with one surety of a similar amount.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 6THDAY OF FEBRUARY 2025. …………….……………………RACHEL NGETICHJUDGEIn the presence of:Elvis/Momanyi – Court Assistants.Ms. Bartilol for State.Accused present.Ms. Mokoit for accused.