[2022] KEHC 3258 (KLR)

Republic v Duale & another (Criminal Case E007 of 2022) [2022] KEHC 3258 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3258 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Case E007 of 2022

A Ali-Aroni, J

May 19, 2022

Between

Republic

Prosecution

and

Abdullahi Hassan Duale

1st Accused

Rashid Ibrahim Abdi

2nd Accused

Ruling

1. Abdullahi Hassan Duale and Rashid Ibrahim Abdi are facing a charge of murder contrary to section 203 as read with 204 of the Penal Code.

2. The particulars of the offence are that on the 1st of February 2022 at Bulla Towfiq area in Garissa Sub-County, within Garissa County jointly with others not before court they unlawfully murdered Abdi Yerrow Ibrahim.

3. The accused persons sought for bond pending hearing and determination of the case.

4. The court requested for a pre-bail report so as to know more about the accused persons and their background. Pre-bail reports on both of the accused were filed in court on March 23, 2022. Both were unfavourable to the accused persons. The recommendations by C.K. Muthoka Probation Officer Garissa state inter alia that the Garissa County Administration are against bond being issued as the two persons are likely to relocate to Somalia if granted bond and members of public may harm the accused persons. As for the 2nd accused, he has another case pending before court.

5. Alongside the pre-bail report the State filed an affidavit sworn by Cpl. James Maimai an officer attached to the Criminal Investigation Department Garissa Sub-County.

6. In the said affidavit he enumerated circumstances that led to the death of the deceased. The court however is not concerned with that for now.

7. The officer goes further to state that the accused were found in possession of three AK 47 rifles, 5 magazines with 98 rounds of ammunition 7. 62 x 39 special.

8. After ballistic examination of the guns, it was found that a spent cartridge recovered from the scene of crime matched one of the recovered weapons. Further another murder has also been connected to the said firearm and the accused both dangerous and are flight risk.

9. Counsel appearing for the accused on their part urged that bond is a constitutional right under Article 49(1) (f) of the Constitution unless for exceptional reasons. The accused persons are Kenyans. And none has been convicted of a criminal offence as the cases against them in other courts are still pending.

10. The State opposed the granting of bail and relied on the pre-bail report and the affidavit. The State contended that the pre-bail report ought not to be ignored as the court called for the same to inform it when arriving at a determination. Further the affidavit of Cpl. James Maimai give compellable reasons why bond is to be denied.

11. Article 49(1) of the Constitution talks of the rights of an accused person. In particular sub-article (h) provides that“to be released on bond or bail; on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

12. In the case of Republic v Danson Ngunya & Kassim Shee Bwana Mohamed Criminal Case No 26 of 2008 Mohamed Ibrahim (JSC) then a Judge of the High Court quoted with approval the case of Al Haji Mujahid Dubuko-Ajari v Federal Republic of Nigeria SC 20A/2006 where Justice Ibrahim Tanko Mohammed (JSC) held that“When it comes to the issue whether to grant or to refuse bail pending trial an accused by the trial court, the law has set out some criterial which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These 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 (emphasis added).vi)The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate them.vii)The likelihood of further charges being brought against them.viii)The probability of guilty.ix)Protection of accused (emphasis added).x)The necessity to procure medial or social report pending final disposal of the case.”The court went further to say the above criteria is not exhaustive.”

13. Judge Ibrahim (JSC) noted that some of the above criteria such as weight of evidence may not be applicable in Kenya due to the principle of innocence until proven guilty except in exceptional circumstances such as confession.He further went to say that based on our Constitution if there are compelling reasons why an accused cannot be released the prosecution should provide the same to the satisfaction of the court.

14. In the instant case, the prosecution filed an affidavit that complements the pre-bail report indicating that the accused are not only dangerous persons on their assessment but they are also a flight risk, and since the public is angered by their alleged action, they may not be safe.

15. What comes out is that the accused may not be safe and importantly they may not avail themselves for trial which is a key consideration in the issuance of bond. This information and /or fear was not negated by the defence.

16. Based on the above the Application for bond/bail by the accused persons for their own safety and in ensuring that the matter is determined to its finality is hereby declined.

DATED, DELIVERED AND SIGNED AT GARISSA THIS 19TH DAY OF MAY, 2022. ALI-ARONIJUDGE