[2022] KEHC 17016 (KLR)

Republic v Chelule (Criminal Case E010 of 2022) [2022] KEHC 17016 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17016 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E010 of 2022

RL Korir, J

November 3, 2022

Between

Republic

Prosecutor

and

Geoffrey Chelule

Accused

Ruling

1. The Accused, Geoffrey Chelule is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars of the charge were that on the 25th day of April 2022, at around 0130hrs, at Koibeyon village in Kapkimolwa location, Bomet East sub-county within Bomet County, murdered Kelvine Kimutai.

2. When the matter came up for pre-trial directions on June, 23rd 2022, Counsel for the Accused applied to have him admitted to bail/bond on reasonable terms as the Court would deem fit, pending the hearing and determination of the case. The Court directed that a pre-bail report be prepared for its consideration.

3. The right to bail is enshrined under Article 49 of the Constitution of Kenya. It provides as follows:-49. Rights of Accused PersonAn arrested person has the right... : -(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

4. Ibrahim, J (as he then was) in Republic v John Kahindi Karisa & 2 Others[2010] eKLR held that: -“This Constitutional provision came into force after the promulgation of the New Constitution. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence e.g. murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.”

5. The right to bail is however not absolute. Section 123A of the Criminal Procedure Code Cap 75 outlines the parameters for the grant of the right to bail. It provides:-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: -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.

6. To grant or deny bail is an exercise of judicial discretion. Such discretion is however, exercised upon consideration of the circumstances of a case and against well established guidelines. The Judiciary Bail and Bond Policy Guidelines of March 2015 set out the procedures to be followed and considerations to be made in an application for bail pending hearing. At page 25, the following considerations must be made:-a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit or abet the commission of a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody.

7. The criteria above was well articulated in the Nigerian Supreme Court case of Alhaji Mujahid Dukubo Asari v Federal Republic of Nigeria SC 20A/2006 where Justice Ibrahim held Tanko Muhammas JSC as follows:-“…When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others, the following: -i.The nature of the charges;ii.The strength of the evidence which supports the charge;iii.The gravity of the punishment in the event of conviction;iv.The previous criminal record of the accused if any;v.The probability that the accused may not surrender himself for trial;vi.The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;vii.The likelihood of further charges being brought against the accused;viii.The probability of guilty;ix.Detention for the protection of the accused;x.The necessity to procure medical or social report pending final disposal of the case.”

8. No doubt the Accused in the present case is facing a serious charge of murder. It is trite however that even the offence of murder is now bailable and subject to the courts discretion as earlier stated.

9. In urging the application, learned counsel for the Accused person submitted that the primary purpose for bail was to secure an accused person’s attendance at court. He submitted that the Accused had a permanent abode and was not a flight risk. He also submitted that the families have reconciled and that the people in the community were at peace with the Accused. He urged the court to find that there were no compelling reasons to deny him bail or bond. Counsel further urged the court to consider the Bail Assessment Report which was favourable to the Accused.

10. I have considered the pre-bail Probation Officer’s report dated September 20, 2022. As submitted by defence counsel, the Report was favourable to the Accused. The victim’s mother who is also the Accused person’s younger sister intimated that she had no objection to the Accused being granted bail as long as he did not interfere with the witnesses. Generally, the whole family and the community expressed regret for the actions of the Accused but were not opposed to his release on bail. His family also stated that they were willing to help him raise the bond/bail and undertook to ensure his attendance to court.

11. I have also considered that the State raised no objection to the Application but only urged that stringent terms be imposed.

12. Having taken all factors into consideration, it is my finding that there exist no compelling reasons to deny the Accused bail. I exercise discretion to grant the Accused bail on the following conditions:-i.He shall execute a personal bond of Kshs. 300,000/= and provide one surety of similar amount.ii.He shall keep the peace and not commit any other offence or intimidate witnesses directly or indirectly.iii.He shall attend court whenever required.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 3RD DAY OF NOVEMBER, 2022. .........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for State, Ms. Chirchir holding brief Mr. Leteipa for the Accused and Kiprotich (Court Assistant)