[2022] KEHC 12030 (KLR)

Republic v Eliakim (Criminal Case E036 of 2021) [2022] KEHC 12030 (KLR) (Crim) (8 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12030 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E036 of 2021

JM Bwonwong'a, J

June 8, 2022

Between

Republic

Prosecutor

and

Philip Makaya Eliakim alias Mzito

Accused

Ruling

The case for the accused/applicant 1. The accused/applicant applied under certificate of urgency to be released on bail/bond pursuant to article 49 (1) (h) of the 2010 Constitution of Kenya and section 123 of the Criminal Procedure Code (cap 75) Laws of Kenya; pending the hearing and determination of his trial on a charge of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya.

2. The accused has also applied for the release of motor vehicle registration No. KDA 884R to Adi Mcheni.

3. The application is supported by a ten paragraphs supporting affidavit of the accused; with the following being the major averments. He surrendered himself to Kilimani police station on 24/05/2021. He has never ran away from the law and he is not a flight risk.

4. Furthermore, he has deposed that he is the special owner of motor vehicle registration No. KDA 884R handerfit which he co-owns with Liberdy Motors by reason that that there is an outstanding loan. He has also deposed that he uses the said vehicle as a tax and that the said Liberdy Motors have no objection to the vehicle being released to him.

5. Additionally, the accused has averred that the police should also release his sim card for phone No. 0723-612997 to him.

The submissions of the accused. 6. Counsel for the accused (Mr. R.T. Aswani) has filed written submissions in support of his application for bail/bond.

7. He has submitted that the accused is not a flight risk as alleged by the prosecution. Four witnesses have already testified and those are the witnesses the investigating officer is alleging that if the accused is released on bail/bond, he is likely to interfere with them.

The case for the respondent. 8. The respondent has opposed the application.The respondent has filed an affidavit through the investigating officer (No. 88623 PC John Muriuki), whose major averments are as follows. The deceased and the accused were living as a husband and wife in Gatwekera in Kibera. The investigating officer (I.O.) has also deposed that the accused does not qualify to be admitted to bail because the prosecution has strong evidence that points to his guilt.

9. He has further deposed that the accused fled his residence at Gatwekera in Kibera and abandoned his place of work where he carried on movie/football business. Additionally, he became unreachable on his phone by his family, employer and the police until he surrendered to the CID police three months later on 24/5/2021 after the incident, which illustrates his guilt and malice.

10. The investigating officer has also deposed that the accused was living in a rented house before this incident and does not have any known place of abode.

11. Additionally, the investigating officer has deposed that the accused is likely to interfere with the witnesses if he is released on bail/bond and is a flight risk.

12. The accused is charged with a serious offence of murder and if found guilty he could be sentenced to death. This will act as an incentive for him to abscond if released on bail.

The submissions of the respondent 13. The respondent did not file any submissions in respect of this application.

Issues for determination. 14. I have considered the affidavits and the submission of counsel for the accused. As a result, I find that the following are the issues for determination.1)Whether the accused is a flight risk.2)Whether the accused will interfere with witnesses.

Issue 1 17. I find that following the commission of this offence during the night of 6th and 7th March 2021 the accused fled from his residence at Gatwekera in Kibera and abandoned his place of work where he carried on movie/football business. I also find that he became unreachable on his phone by his family, employer and the police until he surrendered to the CID police in company of his lawyer three months later on 24/5/2021, after the incident. I further find that he lost hope of being successfully on the run for any longer period. I find that the accused is a flight risk. This is a compelling reason within the meaning of article 49 (1) (h) of the 2010 Constitution of Kenya.

Issue 2 18. In view of the finding that the accused is a flight risk, I find that it is moot or academic to consider whether the accused is likely to interfere with the prosecution witnesses. I therefore decline to do so.

19. In the premises, I find that the application fails with the result that it is hereby dismissed in its entirety.

20. However, there is a matter that has caused me concern in relation to the deposition of the investigating officer. It is not the function of the investigating officer (I.O.) to depose that the accused does not qualify to be admitted to bail because the prosecution has strong evidence that points to his guilt. The investigating officer can only depose to matters of fact and not law. Whether the evidence is strong that it points to the guilt of the accused is a matter for the court to decide. In other words, the finding of guilt or innocence is for the court to decide on and not the Investigating Officer.

21. Furthermore, it is also legally impermissible for the investigating officer to depose that the accused surrendered to the CID police three months later on 24/5/2021 after the incident, which illustrates his guilt and malice. Again, this a matter for the court to decide and not for the investigating officer.

22. An affidavit should not contain arguments or conclusions; since it is essentially a mode of presenting evidence in a documentary form to the court.Investigators should stop this practice.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH DAY OF JUNE 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. R.T. Aswani for the accused/applicantMs Maina for the Republic/respondent