[2017] KEHC 258 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

CRIMINAL CASE (MURDER) NO. 5 OF 2016

(Formerly Kericho HC.CR.C. No. 4 of 2016)

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

-VERSUS-

ERIC MAKAU MUSILA...................................ACCUSED

R U L I N G

1. The Accused herein faces a charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code. To date, a total of twelve prosecution witnesses have testified.

2. This ruling is in respect of the application brought on behalf of the victims of the offence on 12th May, 2017. The same was prompted by the order of this court made at the close of proceedings on 11th May, 2017 and granting bail to the Accused person. The terms imposed were that the Accused be released on a bond of Shs 500,000/= plus two like sureties.

3. The application, expressed to be brought primarily under Section 9 (2) a) of the Victim Protection Act seeks to have the court review and set aside its orders of 11th May, 2017.

4. The application is grounded on the affidavit of one member of the deceased’s family, Susan Chepkemoi in support of the four grounds on the face of application, namely, that:-

“a) The Accused person is an Administrative Police Officer who trained and has considerable experience in handling firearms and other dangerous weapons.

b) The family of the deceased DIANA CHEMUTAI alias CHELELE is apprehensive that they are exposed to potential harm from the Accused person.

c) The Accused person is a flight risk as the evidence already adduced before this Honourable court points at his culpability and there is every likely possibility that the Accused would escape the jurisdiction of this Honourable Court thereby defeat the court of justice.

d) The victims are yet to recover from the psychological trauma they have been subjected to suffer following the murder of deceased.”

5. Through Miss Odhiambo the victims urged the grounds above and emphasising that the right to bail is not absolute and could be denied where there are compelling reasons. She referred to the seriousness of the charge and the evidence tendered. She cited the decision of Achode J. in Hassan Mahati Omar & Ano. –Vs- Republic [2014] KLR.

6. Asserting the victims’ right to approach the court under Section 9 of the Victim Protection Act as they have, Miss Odhiambo explained that the no-objection response earlier made by the victims’ counsel regarding bail was made without seeking the victims’ views. Miss Gikonyo on behalf of the DPP supported the latter position and stated that there occurred a communication break down between the DPP and the victims.

7. The defence opposed the application. Seven grounds of opposition were filed. The key ones being as follows:-

“1. THAT the application is fatally defective and should be dismissed with costs.

2. THAT the application herein expressly offends the provisions of Section 9 (2) a) of the Victims Protection Act No. 17 of 2014.

3. THAT the application is an afterthought and brought in bad faith.

4. …………….;

5. THAT the application does not meet the minimum threshold requirements to warrant the granting of prayer sought.

6. THAT in any event the case is fully heard save for the investigating officer.

7. ………………..”

8. Mr. Simiyu for his part argued that the substantive prayer for setting aside can only be granted where there was proven mistake, error apparent on the face of the record or new evidence. In his view, the Supporting affidavit did not suffice and did not demonstrate the grounds cited.

9. Moreover, he added, the DPP did not file an affidavit to prove the alleged break down of communication. Citing the stage of proceedings, Mr. Simiyu argued that there is no likelihood of the Accused interfering with witnesses. He distinguished the facts inHassan Mahati Omar from the present case. He relied on the Court of Appeal decision in I.P. Veronicah Gitahi & Another –Vs- Republic [2016] eKLR regarding the proper role of victims in criminal proceedings.

10. The key issues raised in respect of this application are firstly, whether the victims’ application is properly before the court, and secondly whether their application is merited in law and substance. It is important to keep in mind that the main contestation is on the question whether the Accused should be allowed to enjoy the bail terms granted by this court on 11/5/2017. Thus the provisions of Article 49 (h) of the Constitution loom large.

11. Regarding the first issue, the discussion by the Court of Appeal in the case of IP Gitahi & Another on the emergence and recognition of victims’ rights in our legal system sets the appropriate context within which this application must be considered.

12. In that case, the Court of Appeal having restated the history and progression of the victim’s right in various common, civil and international law systems observed inter aliathat:-

“It is against this backdrop that the recent developments in the law of victim protection in Kenya ought to be seen.

Articles 2 (5)and 50 (7) and (9) of the Constitution of Kenya, 2010 heralded a new dawn. Apart from enjoining the courts to apply general rules of international law, the Constitution also mandates the courts, in the interest of justice, to allow an intermediary to assist a complainant (or an accused person) to communicate with the court, while requiring Parliament to enact appropriate law to provide for the protection, rights and welfare of victims of offences. That law, the Victim Protection Act was enacted in 2014. By its Section 2, a victim is defined to include, any natural person who suffers injury, loss or damage as a consequence of an offence, a definition wide enough to include the deceased’s mother and uncle who are represented by Mr. Ndubi in this appeal. It also defines a “victim representative” to mean an individual designated by a victim or appointed by the court to act in the best interest of the victim. Mr. Ndubi having been appointed by the family of the deceased fits this definition.

The Act further provides the parameters of the victim’s representative’s participation in the trial. The victim’s views and concerns may be presented in court at any stage of the proceedings as may be determined to be appropriate by the court. Those views and concerns may be presented by the victim himself or herself or by a “legal representative” acting in the victim’s behalf, at the stage of plea-bargaining, bail hearing and sentencing, as far as possible to be heard before any decision affecting him or her is taken; to be accorded legal and social services of his or her own choice, and if the victim is vulnerable, to be given these services at the State’s expense, and to make a victim impact statement at the stage of sentencing. These rights must however not be prejudicial to the rights of the accused person or be inconsistent with a fair and impartial trial. See sections 20 and 21. ”

13. In the above case, counsel for the victims expressed the desire and was allowed to participate in the appeal for purposes of addressing the court on the question of the sentence, which was challenged in the appeal.

14. Section 9 (2) a) of the Victim Protection Act under which the present application is brought provides that:

“(2) Where the personal interests of a victim have been affected, the Court shall-

(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court; and

(b) ………………”

15. Section 10 (b) of the Act further provides that a victim has the right to have her/his safety and that of the family considered in determining the conditions of release on bail of an offender. Section 20 (b) provides an avenue for the victim to submit information to the court at plea bargaining, bail hearing and sentencing. These rights are not in dispute so far as I can tell.

16. What the Accused contests is the timing of the information now proffered through the present application. In that regard, it is significant that on the 11th May 2017, neither the prosecution, nor Miss Chelule, the latter then holding brief for Mr. Bosek for the victim family opposed bail when the same was applied for. The explanation now being given is that Miss Chelule did not seek for or consider the views of the family of the deceased.

17. As for the DPP, some breakdown in communication between him and the victim family is asserted from the bar. There is no affidavit from the investigating officer or the DPP to explain the alleged breakdown in communication. What I understand both the DPP and victim representative to be admitting is that they dropped the ball and failed to do their homework. It must however be borne in mind that the question of bail to an Accused person can be revisited on several occasions before and during the currency of the trial. See Sections 124 to 131 of the Criminal Procedure Code.

18. For instance, if the Accused absconds or otherwise violates the terms of his bond, his bail can be cancelled and subsequently reinstated if he complies or as the court deems fit. Thus the defence argument that the court can only revisit the matter of bail if an error or new evidence is presented is not accurate. The Criminal Procedure Code allows for such situations. I do not think the strictures governing review and setting aside in civil cases can be neatly applied to criminal cases and especially on the question of bail. Secondly, each case must be determined on the basis of its own peculiar facts.

19. I think in a matter such as before this court, the court must be guided by the provisions of the Constitution, the Criminal Procedure Code and the Victim Protection Act, the aim being to give meaning to protection accorded to the victim, while being careful not to prejudice the rights of the Accused or to render the trial process unfair.

20. I have also taken into account the fact that the victims in this case are not to blame for the conduct of their counsel who seemingly misrepresented them in court. I am persuaded that it would be unfair to the victims, and contrary to the letter and spirit of the Victim Protection Act to peremptorily dismiss the victims’ plea as now presented before the court.

21. Thus in so far as the victims were clearly failed by their advocate, I think that Sections 9, 10 and 20 of the Victim Protection Act considered alongside the relevant provisions of the Criminal Procedure Code are wide enough to admit the application now before the court. In so saying I am bolstered by the constitutional injunction to administer justice without undue regard to technicalities.

22. As to the question whether the application has substance, it is in my view that the question whether the Accused is a flight risk lies squarely with the prosecution to establish. However, they have not proffered any affidavit evidence in that regard. Nor even provided details of the Accused’s other trials as ordered by this courtvide directions 2 (a) and (b) given on the 30th June 2017. Ground (c) in the application herein therefore has no firm support.

23. As regards grounds a, b, and d, it is not unreasonable to anticipate that the victim family is apprehensive that they might be in harm’s way if the Accused becomes a free man again. Their apprehension is a subjective matter. However the court having heard 12 witnesses in the case and thereby gained some of the general background of the case, and aware of the fact that the Accused faces two other similar cases, cannot be dismissive of the victims concerns.

24. Consequently, this court on its own volition directed on 30th June 2017 that reports be prepared by the relevant children’s office in respect of the primary victims, namely the children of the Accused with the deceased. According to the report dated 14th July 2017, the children T.M.and S.M.now aged almost 9 years are currently living in Bomet in the custody of an aunt J.C.and their maternal family, and are supported in part by S.C., another sister of the deceased and deponent to the supporting affidavit.

25. It is likely that the deceased family’s apprehension may be related to this arrangement, and the fear perhaps, that the Accused upon release may demand the custody of the two children, thus triggering a fresh round of confrontation with the family of the deceased.

26. On the other hand, the reason for the transfer of this case to Naivasha from Kericho was the security risk posed against the Accused by a hostile public in Kericho. Fortunately, the prosecution case is almost complete as only one witness remains to be heard. Thus, in order to balance all the competing rights and interests in this case, I am not persuaded that setting aside my previous order is the only appropriate answer.

27. No doubt the charges facing the Accused are serious and the victims’ apprehension may well have a basis. In my view however, it is possible to review and tailor the conditions of bail to the exigencies that have come out of this application, rather than setting aside the order to bail altogether.

28. In the circumstances, I would review the bail terms granted herein as follows:

a) The Accused is to be released on bond of Shs 500,000/= with two (2) sureties of like sum and a cash bail of Kshs 200,000/=.

b) Pursuant to his release, and with effect from the first Friday of his release, the Accused will report every fortnight, on Friday mornings to the DCIO Naivasha so long as this case is pending.

c) During the pendency of this case, the Accused may not attempt to contact or visit the children S.M. and T.M. in Bomet or any other place or visit Bomet town, under any circumstances.

d) The Accused may not communicate directly or indirectly or in any other way attempt to approach, reach or visit any member of the family of the deceased, during the pendency of the case.

e) For the purposes of terms b, c and d above, the Accused will deposit with the DCIO Naivasha on every date of reporting a written account supported by relevant documents, of all his movements in the previous fortnight.

29. To that extent the victims’ application has been successful.

Delivered and signed in Naivasha this11th day of October, 2017.

In the presence of:-

Mr. Mutinda for the DPP

Mr. Simiyu for the Accused

N/A for the Victim’s Family

Accused – present

Court Assistant – Barasa

C. MEOLI

JUDGE