[2023] KEHC 23478 (KLR)

Republic v Chemjor (Criminal Case E013 of 2023) [2023] KEHC 23478 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23478 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case E013 of 2023

RB Ngetich, J

October 12, 2023

Between

Republic

Prosecution

and

Silas Barchiba Chemjor

Accused

Ruling

1. The accused Silas Barchiba 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 30th day of May, 2023 at Matingot village of Kaptich Sub-location in Baringo Central Sub- County within Baringo County, the accused murdered Florence Kibor.

2. On the 11th July,2023 the charge and its full particulars were read over and explained to accused who pleaded not guilty. The accused applied for bond through defence counsel Mr. Kipkulei. The prosecution informed the court they were not opposed to the accused being released on bond. The court directed Probation Officer to prepare a pre-bail report to assist the court in determining bond terms.

3. From prebail report filed, the victim’s elder brother indicated that the accused’s character is unpredictable and he has fears that he might come back and harm his own children or anyone within the community. He is opposed to the accused being admitted to bond at this stage of trial. Further that the accused’s family is still bitter with what the accused did; the son is opposed to the accused person being admitted to bond on ground that he might either harm him or he might harm the accused person badly. From the report, the accused’s siblings never showed any interest on whether they will stand surety for him but remained silent over the matter and they were uncooperative.

4. The local administration is opposed to the accused being granted bond on ground that the community is still hostile towards him and his close family members do not want him at the moment. They added that if the accused person is released, his eldest son may harm him and for accused’s security, they prefer him staying in custody.

Determination 5. As per Article 49(1)(h) of theConstitution, bail is constitutional right of an accused and can only be denied if there is compelling reason. Further, under Article 50(2) of theConstitution, 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.

6. 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.

7. 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 theConstitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences.

8. 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.

9. 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.

10. From the local administration, the community is still hostile towards accused and his close family members do not want him back at the moment. They stated that there is likelihood of accused being harmed or him harming his son and they prefer accused staying in custody. None of accused’s immediate family members is willing to stand surety for him.

11. In view of the fact that the accused’s immediate family members are still bitter following occurrence of the offence, his safety is not guaranteed. It will not be safe to release him to the community/family at this stage of trail. There is therefore compelling reason to deny accused bond.

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

13. Accused may renew bond application at a later date if circumstances on the ground change.

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