[2017] KEHC 3171 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE NO. 17 OF 2017

REPUBLIC.......................................................................................................PROSECUTOR

VERSUS

DOMINIC MUTINDA KISUKO

FRANCIS MBATHA MUKEKE

FRANCIS MUCHERU JOHN.......................................................ACCUSED/APPLICANTS

RULING OF THE COURT

1. The three accused persons Dominic Mutinda Kisuko, Francis Mbatha Mukeke and Francis Muchere John have been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 12th day of March, 2017 at Muusini area, Mavokoni location, Yatta sub-county within Machakos County jointly with others not before court murdered Francis Muendo Mbatha.

2. All three accused persons pleaded not guilty to the charges and have further requested this court to release them on bond pending the trial herein.

3. The state through the officer investigating the case No.62965 Sergeant Joseph Kitur filed an affidavit in which he opposed the release of the accused persons on bond on the following terms:-

(i) That the accused persons immediately went into hiding upon the commission of the offence and were arrested two (2) months thereafter and that several accomplices are still at large.

(iii) That the accused persons are a flight risk and likely to abscond if released on bond.

(iv) That the accused persons are likely to interfere with the Prosecution’s witnesses whose identities have already been disclosed in the statements of witnesses supplied.

(iv) That the penalty for this kind of offence is death sentence and which is an incentive for the accused to abscond.

(v) That there are indeed compelling reasons why the accused persons would not be released on bail at this stage until at least some of the witnesses have testified.

4. The accused persons through Dominic Mutinda Kisuko filed replying affidavit to the Prosecution’s objection and raised the foil lowing issues:-

(i) That it is their Constitutional right to be released on bondpending trial unless there are compelling reasons not t be released.

(ii) That the accused are still innocent until proved guilty as provided under Article 50(2) of the Constitution.

(iii) That the accused persons shall not interfere with the Prosecution’s witnesses.

(iv) That they undertake to avail themselves to court whenever required to do so without fail and to comply with such conditions as the court may deem fit and just to impose.

(v) That there are no compelling reasons to deny their being released on bond.

5. Parties herein opted not to present submissions and left the court to rely on the rival affidavits.

6. The Constitution vide Article 49(1)(h) provides that an arrested persons has a 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. The Investigating officer has opposed the release of accused on bond on grounds that they are a flight risk since they had gone into hiding after the incident before being arrested. Ideally it is the responsibility of the Prosecution to persuade the court that there are compelling reasons warranting denial of bond for the accused persons. This burden was laid down in the case of REPUBLIC =Vs= DANSON NGUNYA & ANOTHER [2010] KLR and the Malawi Case of M. LUGUNZI =VS= REPUBLIC MS CA APPEAL NO. 1 OF 1995 (unreported) where the court stated as follows:-

“ ........................... in my judgement the practice should require the state to prove to the satisfaction of the court that in the circumstances of the case, the interest of justice requires the accused to be deprived of his right to be released from detention. The burden should be on the state and not on the accused. He who alleges must prove. This is what we have always upheld in our courts. If the state wants the accused to be detained pending his trial then it is up to the state to prove when the court should make such an order.”

7. The issue for determination is whether there are compelling reasons why the accused persons should not be released on bond. As noted above and by dint of Article 49(1) (h) of the Constitution, the burden of presenting the compelling reasons squarely rests on the shoulders of the prosecution. A perusal of the affidavit of the investigating officer Sergeant Joseph Kitur reveals two major reasons for refusal of bond namely that of interference with witnesses and accused persons being a flight risk.

8. As regards the issue of interference with witnesses, the Prosecution was under obligation to avail evidence in that regard. None of those witnesses have come forward to confirm the same and there is no affidavit sworn by any one of them indicating that there is likelihood of them being interfered with by the accused persons.

9. As regards the issue that accused are a flight risk, I find the Prosecution should have gone further to present evidence in that regard. The Investigating Officer says in his affidavit that the accused persons and other accomplices went into hiding after the commission of the offence and were apprehended twenty (20) days thereafter. He further confirms that they were arrested from their places of abode while the other suspects are still at large. I find that the fact that the accused were arrested from their homes reinforces their plea that they are not likely to abscond. Even though other suspects are still at large the police have the wherewithal to trace them. The police also have the wherewithal to pursue the persons who might abscond in addition to getting back up from the sureties to those released on bond.

10. On the issue of seriousness of the charge and the likely sentence being factors likely to prompt accused persons to abscond, I find that the Constitution is quite clear that all offences are bailable and accused persons are deemed innocent until proved guilty. The seriousness and sentence in a matter should not override an accused person’s right to be released on bond unless and until cogent and compelling reasons have been advanced by the Prosecution. The investigating officer in his affidavit has alluded to the fact that initially the offence had been one of assault before it aggravated into the present charge of murder. The accused persons have indicated that they shall abide by the terms and conditions to be imposed by this Honourable court.

11. With the aforegoing observations. I allow the release of accused persons on bond on the following terms:-

(1) Each accused is ordered to execute a bond of Kshs.500,000/= plus one surety of like sum.

(2) Upon release, the accused persons shall attend court on all hearing and mention dates without fair until the final determination of the matter herein or until further orders.

(3) In the event of default the bond shall stand cancelled and thereafter the accused shall continue with their case while in remand custody.

It is so ordered.

Dated, signed and delivered at MACHAKOS this 9th Day of OCTOBER, 2017.

D.K. KEMEI

JUDGE

In the presence of:

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