[2023] KEHC 23456 (KLR)

Republic v Chebii (Criminal Case E016 of 2023) [2023] KEHC 23456 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23456 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case E016 of 2023

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Wilson Kipchumba Chebii

Accused

Ruling

1. The accused Wilson Kipchumba Chebii has been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the charge being that the accused on the 1st day of May, 2022 at around 11:00hours at Terrain village, Kinyach Sub-location in Baringo North sub-county within Baringo county the accused murdered Wycliffe Kemboi Simotwo.

2. on the July 27, 2023 the charge was read over and explained to accused. He denied the charge and plea of not guilty was entered. Ms Kinyanjui who was holding brief for Mr Mathai applied for bond on behalf of the accused. The prosecution informed the court that they were not opposed to the accused being released on bond. The court directed that pre-bail report be availed to court to assist the court in determining bond terms.

3. Pre-bail report was filed on the September 18, 2023. From the report, the accused is married with six children and has been a leader for National Police Reservist for his sub-location since 2017. He seeks to be released on bond so that he can continue with his parental responsibility for his school going children.

4. The victim’s brother opposed the accused being admitted to bond on ground that he is a threat to the witnesses in the village and the community at large. The accused’s family prays for accused to be admitted into bond so that he can take care of his family and they are willing to stand surety for him.

5. The local administration of Kinyach gave mixed opinions concerning the accused person being admitted to bond. They stated that following accused’s arrest, his community members are at peace and if he returns to the community, the community will not be at peace; whereas the local administration for Arror never opposed the accused being admitted into bond stating that the accused person is well known to them, he is not a flight risk and an individual who will abide by the conditions set by the court.

Determination 6. As per article 49(1)(h) of the Constitution, bail is constitutional right of an accused which can only be denied if there is compelling reason. Further, under 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 and pretrial detention should not constitute punishment; the fact that accused persons are not convicts should be reflected in their treatment and management; the accused person should not be subject to the same rules and regulations as convicts.

7. Further, section 123A of the Criminal Procedure Code, chapter 75 of the Laws of Kenya, provide factors that should be taken into consideration in bond determination as hereunder:-(a)the nature or seriousness of the offence;(b)the character, antecedents, associations and community ties of the accused person;(c)the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;(d)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—a.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;b.should be kept in custody for his own protection.

8. And under the Bail and Bond Policy Guidelines, the general guideline under paragraph 4. 9 is as follows: -“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.

9. 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.

10. 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 likely hoof of absconding and the safety of the accused.

11. From pre-bail report, the victim’s family is opposed to the accused being admitted to bond for reason that he is a threat to the witnesses. I also note that there is divided view by local administration for Kinyach and Arror. From local administration from Kinyach area, the return of the accused to the community at this stage of trial will disturb the peace that now exist in the community. In view of divided view from the local administration from the two areas and the fear of interference with the witnesses, I am inclined to deny accused bond at this stage of trial.

Final Orders: -1. Application for bond is declined at this stage of trial.2. Accused may renew bond application at a later stage of trial.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 12TH DAY OF OCTOBER 2023. …………….……………………RACHEL NGETICHJUDGEIN THE PRESENCE OF:MR. KEMBOI - COURT ASSISTANT.ACCUSED PRESENT.NO APPEARANCE FOR ACCUSED.MS RATEMO FOR STATE.