[2023] KEHC 26520 (KLR)

Republic v Biwott (Criminal Case E023 of 2023) [2023] KEHC 26520 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26520 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E023 of 2023

RN Nyakundi, J

December 11, 2023

Between

Republic

Prosecutor

and

Lilian Biwott

Accused

Ruling

Background 1. The accused Lilian Biwott is facing a charge on murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the offence being that on the night of 14th October, 2023 at Kimumu Estate in Eldoret Township in Moiben Sub-County within Uasin Gishu County, in the Republic of Kenya murdered one Victor Kipchumba. The accused on being arraigned in court on 1st November, 2023 she pleaded not guilty to the offence. She was represented by learned counsel Mr. Oscar Oduor and Mr Fedha appeared for the state. In that first appearance Mr. Fedha for the state apparently did not object to the accused being released on bond. This triggered an objection from the victim family who filed subsequent affidavits in opposition to the application as sought by the accused. This called for a trial within a trial to appreciate the circumstances upon which the victim’s family urged the court to overrule the state on the issue of the accused being released on bail pending trial.

2. In opposition to that application the court had an advantage of being supplied with an affidavit of two objectors to decline exercise of discretion in favour of the accused. In the first instance was an affidavit sworn by Ismael Kipkosgei Sorgor which deposed as follows:1. That I am an uncle to the late Victor Kipchumba who was murdered and or killed on 14/10/20232. That his wife is my sister in law has been suspected of his murder and who has been charged for murder has applied for bond3. That I and family members are concerned and oppose release on bond on the grounds tht at the time of commission of the offence there were children and house help who witnessed the incident4. That I and other family members are apprehensive that there are high chances that the accused ponce released may influence and or couch the witnesses to testify in a certain manner.5. That I was among those who arrived at the scene as such I am a potential witness6. That In view of being a witness, I fear for my security and safety if accused is released on bond bearing in mind that the accused is a police officer who is licenced and trained to carry firearm7. That the security of the witnesses and other family members is thus not guaranteed and or is in jeopardy if accused is released on bond.8. That I also concur with probation officers report that the security of the accused is not guaranteed in view of the fact that the relatives and neighbours are still very hostile and there is likelihood of vengeance not only to the accused but might also trigger and or escalate hostility between our family and that of the accused.

3. In addition, one Domnic Chepkiyeny of P.O. Box 9348-30100 Eldoret deposed as follows:1. That: I am a male adult of sound mind and the deponent herein hence competent to swear this affidavit.2. That I am a brother to the Later Victor Kipchumba who was murdered and or killed on 14/10/20233. That his wife who is my sister in law has been suspended of his murder and who has been charged for murder has applied for bond.4. That I and family members are concerned and oppose release on bond on the grounds that at the time of commission of the offence there were children and house help who witnessed the incident.5. That I and other family members are apprehensive that there are high chances that the accused ponce released may influence and or couch the witness to testify in a certain manner.6. That I was among those who arrived at the scene as such I am a potential witness.7. That In view of being a witness, I fear for my security and safety if accused is released on bond bearing in mind that the accused is a police officer who is licenced and trained to carry firearm.8. That the security of the witness and other family members is thus not guaranteed and or is in jeopardy if accused is released on bond9. That I also concur with probation officers report that the security of the accused is not guaranteed in view of the fact that the relatives and neighbours are still very hostile and there is likelihood of vengeance not only to the accused but might also trigger and or escalate hostility between our family and that of the accused.

Determination 4. This application is predicated under Article 49 (i) (h) of the constitution and Section 123 & 123(a) of the CPC. In exercising discretion to decline or grant the application for bond the Bail and Bond Policy of the judiciary set out the following non exhaustive factors as a guide dependent upon the facts of each specific case:i.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guiltyii.The strength of the prosecution caseiii.Character and antecedent of the accused personiv.The failure of the accused person to observe bail or bond termsv.Likelihood of interfering with witnessesvi.The need to protect the victim or victims of the crimevii.The relationship between the accused person and potential witnessesviii.Child offendersix.The accused person is a flight riskx.Whether accused person is gainfully employedxi.Public order, peace or securityxii.Protection of the accused person

5. Both local and comparative jurisprudence as construed and interpreted the universality and application what constitutes compelling reasons as stipulated in Article 49(1) (h) of the constitution in the cases of Nyaruvivo & Another (HB 262-17, HCB. 122-17 XREF CRB 1454A –B-17 (2017) ZWBHC 262 (31 August 2017). The court held as follows: “//The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established where there is a likelihood that the accused, if he or she were released on bail, will (i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or (ii) not stand his or her trial or appear to receive sentence; or (iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system… the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; the strength of the case for the prosecution and the corresponding incentive of the accused to flee; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account…In considering any question…the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely (i) the period for which the accused has already been in custody since his or her arrest; (ii) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; (iii) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; (iv) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; (v) the state of health of the accused; (vi) any other factor which in the opinion of the court should be taken into account… In assessing the risk of abscondment, the established approach is for the court to assess this risk by first assessing the likely degree of temptation to abscond which may face the accused. To do this, one must consider the gravity of the charge because quite clearly, the more serious the charge, the more severe the sentence is likely to be. In SvNichas 1977 (1) SA 257 (C) it was observed that if there is a likelihood of heavy sentences being imposed the accused will be tempted to abscond. Similar sentiments were stated in S v Hudson 1980 (4) SA 145 (D) 146 in the following terms;

6. The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.”

7. In other words, the possibility of a severe sentence enhances any possible inducement to the accused to flee. See also Aitken v AG1992 (2) ZLR 249 and Norman Mapfumo vs.The State HH 63/2008…The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.”

8. Back home in the case of Republic –vs- Francis Kimathi(2017) eKLR the court held that: “ …… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution.

9. In my considered view appreciating the evidence by the deponents of the affidavits accompanied also with the probation officer’s report a prima facie case has been established to demonstrate that the evidence from the victim and proposed witnesses for the prosecution would be at a risk of being interfered with by the accused person if released on bail at this stage. It is trite the prima facie case is a cause of action that is sufficiently established by a party’s evidence to justify a verdict in his or her favour provided such evidence is not rebutted by the other party. In other words, upon filing of the affidavits by the two deponents it was incumbent for the state to file a rejoinder to the issues raised on interference of witnesses likely to occasion prejudice or injustice to the entire proceedings. So at first sight and on its face the impression of the case is that the investigating officer was or may be covering up for his or her colleague to be released on bail notwithstanding compelling evidence to the contrary as pleaded in the affidavits before this court. The concept of prima facie evidence in these affidavits is important in this legal proceedings because it provides a threshold or a standard for determining whether a case or evidence under Article 49(i) (h) of the constitution is sufficient to establish a fact or cause of action.

10. What has been stated about interfering of witnesses by the parties who have been given an opportunity to present their case in court cannot just be wished away. The factual situation which had become moot by the time the application was being heard is how the state vanished into the background without responding in the same measure with affidavits to resolve the evidential tension between the deponents, social inquiry report by the probation officer and the alleged decision not to oppose bail in the 1st instance. One of the purposes of the law is to regulate and guide relations in our society one of the ways it does so is by providing remedies and facilitating access to courts for the settlement of disputes. As a supreme law of the land the constitution protects basic rights of the accused person (s) the victims, and society as a whole. In approaching the substantive question of bail the court does declare that the oral submissions by the state contradicted evidentiary the material facts placed before court. The following ingredients have not been denied by the state as presented in the affidavits. The risk of accused likely to influence the witnesses who are well known as set out to be part of the trial at an opportune time. Simply by releasing the accused person on bail at this stage the possibility that it would result into a future miscarriage of justice is not far-fetched. Though bail is prescribed as available to the suspects to an offence of murder pending trial that right must be granted based on an examination of specific conditions by the court exercising judicial discretion on certain fair administrative action. If indeed the court has affidavit evidence showing that the person seeking bail is likely to hinder the legal process or can influence the witnesses or hamper the administration of justice he or she should not be granted bail. The facts and the circumstances of the case as pleaded by the deponents to me is not about emotions and pressure for the court to continue restricting the accused person in custody. In terms of concerned and anxiety of the court is how the investigation inquiry did not furnish the court with the evidence that the prosecution interest will not be injured owing to the fears expressed by the proposed witnesses in the affidavits.

11. The principle of equality of arms is an essential element of the fair trial concept in Article 50 of the Constitution and minimum threshold for impartial and credible proceedings. As to the right to equality and effective access to the court the victim to the offence is not a busy body but one who has a stake to the purposes and objectives of justice in our legal system. Notably equity formulates that a trial would not be equitable if it will proceed with condition precedent likely to place a party in an unfair disadvantage. The principle of equality of arms encompasses several guarantees linked to the victim, the defence, and the state opportunities to be heard during the trial of an accused person. As much as the accused person is entitled to a fair trial balance of rights between the victim, the state, and the accused is the bedrock for procedural fairness to ensure substantive justice on the merits. The concept of a fair trial in favour of the victim and the accused person is understandable because the prosecution as an agent of the state must act on behalf and in the interest of the public good. The integrity, legitimacy and acceptability of the criminal justice system of our country must be tested by compliance with fair trial rights in Article 50 of the constitution and the benchmark of not ignoring the victim rights to a criminal proceedings. The correct balance must be maintained between the fundamental rights of the accused and the essential rights of the victims and the public in general as that is where the rule of law thrives. Equality of arms is a basic right in any criminal trial and not a dispensable ideal to be approached in favour of the accused person. This is the contextual approach towards equality of arms that regarding the rights of the victims at all stages of the proceedings in applying and interpreting the applicable law. If one has to focus on procedural fairness and equal opportunities on reaching a verdict it is obvious that the investigating officer ought to have listened and established the concerns inevitably raised by the witnesses.

12. In light of the established principles and the criteria outlined in the law exercising judicial discretion while assessing this application for bail the objection is supported by compelling evidence based on the facts and circumstances of the case. As a consequence the motion for bail under Article 49(1) (h) of the constitution is denied.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 11TH DAY OF DECEMBER, 2023. In the presence ofMr. Mugun for the StatedMr. Korir for the VictimsMr Oduor for the accusedR. NYAKUNDIJUDGE