[2023] KEHC 23479 (KLR)

Republic v Chebii & another (Criminal Case E017 of 2023) [2023] KEHC 23479 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23479 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case E017 of 2023

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Wilson Kipchumba Chebii

1st Accused

Wesley Yego Kimaiyo

2nd Accused

Ruling

1. The accused Wilson Kipchumba Chebii & Wesley Yego Kimaiyo have 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 persons on the 16th day of July, 2023 at around 8:00hours at Terren Bridge, Kinyach Sub-location in Baringo North Sub- County within Baringo County jointly with others not before court the accused persons murdered Frankson Chebor Kamama.

2. On the 27th July,2023, the charge and its full particulars were read over and explained to the accused persons who pleaded not guilty. Ms. Kinyanjui holding brief for defence counsels Mr. Mathai for the 1st accused and Mr. Chepkilot for the 2nd accused applied for accused persons to be released on bond pending trial. The prosecution informed the court they were not opposed to the accused persons being released on bond. The court directed probation officer to prepare pre-bail report to assist the court in determining bond terms.

3. The Reports were filed as ordered by the court on the 18th September,2023. From the report, the 1st accused is married with six children and has been a leader for National Police Reservist since 2017 for his sub-location.

4. Accused 1’s family are willing to stand surety for him but the victim’s brother opposed to accused to being admitted to bond on ground that he is a threat to the witnesses in the village and the community at large. The local administration gave mixed opinions concerning the accused person being admitted into bond.

5. The local administration of Kinyach strongly opposed the accused being admitted into bond on ground that since his arrest, his community members are at peace and if returned to the community, the community will not be at peace. The local administration for Arror never opposed the accused being admitted into bond terms stating that the accused is well known to them, that he is not a flight risk and an individual who will abide by the conditions set by the court.

6. In respect to the 2nd accused, the report indicate that he is married with two children. He commits to abide by the conditions set by the court. He is able to identify a person who will stand surety for him if the court admits him into bond.

7. However, the victim’s grandfather and the deceased’s cousin are strongly opposed to the second accused being admitted to bond on ground that their kin are already death and as a healing process, they prefer the accused 2 to continue staying in custody.

8. Accused 2’s sister stated that her brother has been arrested and released on bond before and he has not absconded and they are willing to stand surety for him. She prayed for the court to admit him into very reasonable bond terms.

9. The local administration gave mixed opinions concerning the accused person being admitted into bond. The local administration from Kinyach opposed the accused being admitted to bond on ground that since his arrest his community members are at peace and his return will lead to insecurity at community level. The local administration of Chesuman never opposed the offender being admitted to bond stating that the accused person is well known to them, that he is not a flight risk and is an individual who will abide by the conditions set by the court.

Determination 10. 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 persons should not be subject to the same rules and regulations as convicts.

11. 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.

12. 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.

13. 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.

14. 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 likelihood of absconding and the safety of the accused.

15. I take note of the sentiments of the local administration and the victim’s family. There is fear that the accused persons may interfere with the witnesses. Reason given by family of the accused in argument for him to be released on bond is that he has been released on bond before and he did not abscond and therefore not a flight risk. The family’s sentiments however confirm the fears of the victim’s family of likelihood of interfering with witnesses. In view of divided opinion by local administration and threat to witnesses, I am of the view that it may not be safe to release the accused persons on bond at this stage of trial.

16. Final Orders: -1. Application for bond is declined.2. Accused person may reapply for bond at a later stage of trial.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 12TH DAY OF OCTOBER 2023. RACHEL NGETICHJUDGE