[2023] KEHC 23460 (KLR)

Republic v Chemjor (Criminal Case E021 of 2023) [2023] KEHC 23460 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23460 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case E021 of 2023

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Stephen Kimuge Chemjor

Accused

Ruling

1. The accused Stephen Kimuge Chemjor has been charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. Particulars are that the accused on the 2nd day of September, 2023 at around 1600hrs at Kapluk Sub-location in Baringo North Sub- County within Baringo county the accused murdered one Musa Chemjor.

2. On the 20th September, 2023, the charge and its full particulars were read over and explained to the accused person who denied the charge and a plea of not guilty was entered. The state counsel informed the court that they were not opposed to the accused being released on bond and the court made an order for a pre-bail report to be prepared by the Probation Officer. The pre- bail report for the accused was filed on 11th October, 2023.

3. Pre-bail report show that the accused is aged 72 years and was married to Tingo Kimuge who is currently deceased and they are blessed with three children 2 of them being adults and one is deceased.

4. The deceased’s family members are all opposed to the accused being granted bond at the moment. They stated that they are still in pain and bitter over what the accused person did and will remain in fear since it is not the first time for the accused to commit such an offence; they fear that accused might harm them. They added that if the accused is released this early, his life is in danger as the community at large do not want him back to the community.

5. The accused’s family indicated that the accused is their father and it is not the first time he has found himself against the law. Their view on bond terms is that the accused should not be admitted into bond at the moment due to his own safety as at the community and extended family level, no one wants to see him and if released on bond, they might kill him. His daughter’s view is that the accused person be admitted into bond terms at a later period when the community temperatures are very low and at that time, she will facilitate his bond terms requirements.

6. The local administration are strongly opposed to the accused being admitted into bond at the moment due to hostility from the family and community level and for his own safety they propose accused remain in custody.

7. under Article 49(1)(h) of the Constitution, 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.”

8. Further, section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, provides as follows:-(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.

9. The Bail and Bond Policy Guidelines provide non-exhaustive factors for consideration in bail applications as hereundera.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. From the Probation Officer’s report, it will not be safe to release the accused back to the community at this time of trial as there is still hostility both from his family and the community. The deceased’s family members also fear that the accused person may harm them if granted bail as it is not the first time the accused person to commit such an offence.

11. From the foregoing, the safety of the accused person cannot be guaranteed in the event that he is released because of the high tension in the family level and the community level following the incident. From the Probation Officer’s report there is still a lot of tension on the ground as the community is still outraged by the death of the deceased person. From the foregoing, I find that there are compelling reasons to deny the accused bond.

12. Final Orders:- 1. Application for bond is hereby declined.

2. Accused may renew bond application at a later date.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 12TH DAY OF OCTOBER 2023. ...................................RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi & Mr. Momanyi - Court Assistants.Ms Ratemo for State.Accused present.Ms Kogo for accused.