[2014] KEHC 8574 (KLR)

REPUBLIC OFKENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO.96 OF 2014

REPUBLIC…………………………………………………………………………......PROSECUTOR

VERSUS

EDWARD KIRUI…………………………………………………………………………………ACCUSED

RULING

The Accused, Edward Kirui was ordered by the Court of Appeal to be retried for the offence of Murder contrary to Section 203as read with Section 204 of the Penal Code. According to the information, the particulars of the offence were that on 16th January 2008 at Kondele Estate in Kisumu County, the Accused murdered Ismael Chacha. When the Accused was arraigned before this court, he pleaded not guilty to the charge. On 27th October 2014, the Accused filed an application pursuant to Articles 50(2)(a) and 49(1)(h) of the Constitution seeking to be released on bail pending trial. The Accused states that he was originally charged with the offence of Murderbut was acquitted by the High Court. The Republic did appeal against the decision. Pending the hearing of the appeal, the Court of Appeal required him to attend the court for the purposes of the mention of his case. The Accused stated that during the entire period that the appeal remained pending hearing and determination, he did not at any time fail to attend court. He therefore pleads with the court to release him on bail pending the hearing of the case, because, he is not a flight risk and was ready to abide by whatever terms that the court may impose to secure his attendance before the trial court. The application is supported by the annexed affidavit of the Accused.

The application is opposed. Dorcas Oduor, the Deputy Director of Prosecutions swore a replying affidavit in opposition to the application. She stated that the Accused was aware of virtually all the prosecution witnesses because they had testified against him in the impeached trial. She deponed that the Accused was therefore aware of the strength of the prosecution case, and would, if released on bail, likely interfere or influence the witnesses. She further stated that due to the serious nature of the charge, the Accused may likely be tempted to abscond from the court’s jurisdiction. In the premises therefore, she was of the view that, in the interest of justice, the Accused should remain in custody pending the hearing and determination of the case.

Article 49(1)(h) of the Constitution grants any person charged with a criminal offence the right to be released on bail pending trial unless there are compelling reasons to make the court reach a contrary finding. What constitutes “compelling reasons” has not been defined by the Constitution. However, from several decisions that have been rendered by the various courts since the promulgation of the Constitution, compelling reasons include: the likelihood that the Accused will fail to attend court during trial, the possibility that the Accused may interfere with witnesses, if the life of the Accused person or any of the witnesses shall be endangered in case the Accused is released on bail, and where it is alleged that the Accused person may likely commit an offence if he is released on bail. These reasons are not exhaustive. However, the court will consider the circumstances of each case, and the interest of justice, taking into consideration that an Accused person is presumed innocent until he is proved guilty by lawfully established court.

In the present application, Ms. Oduor submitted that the Accused may likely interfere with witnesses since he knows all the witnesses who testified against him in the trial that was overturned by the Court of Appeal. She further stated that the prosecution had strong evidence (which the accused was aware of) and which would most likely result in the conviction of the Accused. Taking into consideration that the Accused may likely face the ultimate severest sentence (i.e. the death sentence), she argued that the Accused may likely abscond from attending court during trial. On his part, the Accused told the court that he was diligent and had not failed to attend court when he was required to do so during the hearing of his appeal. He told the court that he would not interfere with witnesses nor would he fail to attend court when required to do so. He was willing to abide by any terms that the court may impose to secure his attendance in court.

This court has carefully evaluated the facts of this case. It was clear to the court that the prosecution failed to establish any compelling reasons for this court to deny the Accused bail pending trial. The fears expressed by the prosecution will be addressed by appropriate orders issued by this court to secure the integrity of the case and the attendance of the Accused person before the court that will try him. The prosecution argued that the Accused will be tempted to abscond from court attendance in view of the strong evidence that the prosecution will adduce against him. If this court were to accept such argument at its face value, then it would mean that the presumption of innocence of an accused person in criminal cases would have been sacrificed at the altar of the prosecution’s assessment as to the strength of its case.

In the premises therefore, this court holds that the Accused has established a case to be released on bail pending trial. The Accused is therefore released on bail pending trial on condition that he posts a bond of Kshs.2 million with one surety of the same amount. As a condition of his bail, the Accused shall not have any contact with the prosecution witnesses until they have testified before court. He shall be required to attend court without fail until the conclusion of the case. It is so ordered.

DATED AT NAIROBI THIS 2ND DAY OF DECEMBER 2014

L. KIMARU

JUDGE