[2019] KEHC 3729 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

CRIMINAL CASE NO. 18 OF 2019

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

VERSUS

EUNICE MWENDWA WAMBUA..........1ST ACCUSED/APPLICANT

DANSON SILA WAMBUA.....................2ND ACCUSED/APPLICANT

DAVID MWENDWA WAMBUA............3RD ACCUSED/APPLICANT

JAN KIOKO MWANGANGI..................4TH ACCUSED/APPLICANT

RULING

1. The accused herein face the charge of Murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya for which a plea of not guilty was entered. The particulars of the charge were that on unknown dates between 13th day of May, 2019 and 15th May, 2019 at Ngulwa Village, Kalama Location in Machakos Sub-county within Machakos County, the accused jointly with others not before court murdered Esther Wavinya Mwanthi.

2. The accused pleaded not guilty to the charge and have applied that pending the hearing and determination of this case, they should be admitted to bond/bail on reasonable and/or favourable terms. That application was made by way of Notice of Motion dated 24th July, 2019 supported by an affidavit sworn by Eunice Mueni, the 1st accused who deposed that she was doing so on behalf of the other accused persons.

3. The applicants in this application contend that they are law abiding citizens with no previous criminal records and have a permanent place of abode hence are not at a flight risk. They have good antecedents and are of high moral standing and their liberty to bail and or bond will contribute to their adequate preparation of their defence. According to them, there are no compelling reasons adduced not to admit them to bail.

4. According to the accused persons, they were arraigned in court on the 26th of June 2019 where they took plea. According to the supporting affidavit, they have no intention to interfere with the prosecution witnesses if released on bond since they are law abiding citizens with no previous criminal records and are willing to attend court whenever required to do so. It was their case that no prejudice shall be occasioned upon any of the parties if the orders sought are granted.

5. The application was however opposed by the Prosecution through Learned Prosecution Counsel, Ms Mogoi. In so doing the prosecution relied on a replying affidavit sworn by Cpl. Anthony Wanguya, the investigation officer in the matter. According to him, the 1st accused who was married to the deceased’s brother, is a sister in law of the deceased while the 2nd and 3rd accused are sons of the 1st accused hence nephews of the deceased. The 4th accused is a nephew of the 1st accused and as such a cousin of the 2nd and 3rd applicants. The deponent was therefore of the view that if released on bail, the accused persons are likely to target the prosecution’s key witnesses who are well known to them since they are relatives who live within the same village and that would interfere with the smooth proceeding of the matter.

6. While appreciating that offence is bailable, it was contended that the grant of bail is not absolute but a matter of discretion on the part of the court. To the deponent, considering the nature and seriousness of the offence, the seriousness of the sentence provided for by law, the court should find that there are compelling reasons why the applicant should be denied bail.

Determination

7. I have considered the application, the affidavits both in support thereof and in opposition thereto.

8. Before proceeding with the decision, it is my view that it is important to properly understand the position of the right to bail in our constitutional dispensation. Article 49(1)(h) of the Constitution provides that:-

An accused person has the right …

(h) to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

9. This Article falls within Part 2 (Rights and Fundamental Freedoms) of Chapter Four (Bill of Rights). Article 19 of the Constitution provides inter alia that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies; that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings; and that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.

10. That the rights and fundamental freedoms are not favours dished by the State was made clear by Nyamu, J(as he then was) in Kenya Bus Services Ltd & 2 Others vs. Attorney General [2005] 1 KLR 787where he held that:

“The only difference between rights and the restrictions are that the restrictions can be challenged on the grounds of reasonableness, democratic practice, proportionality and the society’s values and morals including economic and social conditions etc. whereas rights are to the spiritual, God given, and inalienable and to the non-believers changeless and the eighth wonder of the World.”

11. As was appreciated by the same Judge in Richard Nduati Kariuki vs. Honourable Leonard Nduati Kariuki & Another HCMA No. 7 Of 2006 [2006] 2 KLR 356:

“The International instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (The ICCPR) and International Covenant on Economic Social and Cultural Rights (The ICESC) give recognition that human rights belong to an individual as a human being, hence the inherent dignity and the fact that those rights are equal and inalienable of all human beings. The rights are inherent to man. They are universal and inalienable and hence their ethical base, since they are intrinsic to the human condition. They are not dependent on the states or the geographical location. They are owed to all persons. For the above reasons human rights are owed by the States to all individuals within their jurisdiction and in certain situations to groups of individuals.It is a general principle in international human rights law that human beings cannot be deprived of the substance of their rights hence reference to their individuality. It is only the exercise of some of the rights that can be limited in certain circumstances. Many Constitutions of the world provide for state responsibility for not complying with the legal obligations as regards human rights. It is now recognized, that under international law, States incur responsibility or liability for not complying with their legal obligations to respect and ensure, that is, to guarantee, the effective enjoyment of the human rights recognized either by International instruments binding on the State concerned or any other source of law. An impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the legal, source concerned.”

12. Where the Constitution guarantees to a person certain rights, it is not necessary that the person applies to enjoy those rights. Rather, it is those who are of the view that those rights ought not to be enjoyed who shoulder the burden of putting forward a case justifying either the denial of those rights or their restrictions. Since the Constitution guarantees an accused person the right to be released on bond or bail, on reasonable conditions pending a charge or trial, the burden of showing that there exist compelling reasons that justify the denial of bail rests on the prosecution. It is therefore my view that strictly speaking an accused person has no duty to apply for bail. To the contrary it is the prosecution that ought to apply to the court that an accused person ought not to be released on bail. In the absence of any material placed before the court as to the existence of compelling reasons, the denial of bail or failure to release an accused person on bail amounts to denial of a right.

13. Whereas Article 49(1)(h) of the Constitution does not identify what qualifies under the term “compelling reasons”, the ordinary meaning according to Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain meaning it is apparent that the court would consider any fact or circumstances brought to its attention by the prosecution which would convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the accused will attend trial.

14. It is true that the right to bail is not absolute and where there are compelling reasons the said right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. What the compelling reasons are, however, depend on the circumstances of each case and these circumstances are to be considered cumulatively and not in isolation. The mere fact therefore that the offence with which an accused is charged carries a serious sentence is however not necessarily a reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond appearing for trial. Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend the trial. The imposition of terms of the bail if necessary must similarly be for the purposes of ensuring the attendance of the accused at the trial and ought not to be based solely on the sentence that the accused stands to serve if convicted. It is therefore my view that the discretion to grant bail and set the conditions rests with the court. In exercising its discretion, the court must seek to strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of justice, the court will lean in favour of liberty and grant bail where possible, provided the interests of justice will not be prejudiced by this. Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of her release. In S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August 2017), the Court held that:

“The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established where there is a likelihood that the accused, if he or she were released on bail, will (i) endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or (ii) not stand his or her trial or appear to receive sentence; or (iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system… the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; the strength of the case for the prosecution and the corresponding incentive of the accused to flee; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account…In considering any question…the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely (i) the period for which the accused has already been in custody since his or her arrest; (ii) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; (iii) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; (iv) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; (v) the state of health of the accused; (vi) any other factor which in the opinion of the court should be taken into account… In assessing the risk of abscondment, the established approach is for the court to assess this risk by first assessing the likely degree of temptation to abscond which may face the accused. To do this, one must consider the gravity of the charge because quite clearly, the more serious the charge, the more severe the sentence is likely to be. In Sv Nichas1977 (1) SA 257 (C) it was observed that if there is a likelihood of heavy sentences being imposed the accused will be tempted to abscond. Similar sentiments were stated in S v Hudson 1980 (4) SA 145 (D) 146 in the following terms;

“The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.”

In other words, the possibility of a severe sentence enhances any possible inducement to the accused to flee. See also Aitken v AG 1992 (2) ZLR 249 and Norman Mapfumo vs. The State HH 63/2008… The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.”

15. Gravity of the offence as a consideration was appreciated however by Mbogholi Msagha, J in Criminal Application No. 319 of 2002 Priscilla Jemutai Kolonge vs. Republic (unreported) at page 3, wherein he held as follows:

“However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive.”

16. The Nigerian Supreme Court (Justice Ibrahim Tanko Muhammad J.S.C.) set out some essential criteria on the issue of whether to grant bail in Alhaji Mujahid Dukubo – Asari vs. Federal Republic of Nigeria S.C. 20A/2006 as follows:

“…When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such 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;

(vi) The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;

(vii) The likelihood of further charges being brought against the accused;

(viii) The probability of guilty;

(ix) Detention for the protection of the accused;

(x) The necessity to procure medical or social report pending final disposal of the case.

17. However, in Republic vs. Danson Mgunya & Another [2010] eKLR,the Court while appreciating the need in this Country to have a policy on bail/bond was of the view that the above criteria reflects the true legal position but opined that:

“…criteria (ii) above (the strength of the evidence which supports the charge) ought not apply in Kenya except where perhaps the application for bail is being made or renewed after the court has placed the accused on his defence. This is inconsistent with the principle that an accused is presumed innocent. Such criteria should be applied with great caution and only in exceptional circumstances like where there is a statement that show that the accused was caught-red handed or where there is a lawfully admitted confession. Criteria (viii) above (the probability of guilt) appears to be in reference to where an accused has been placed on his defence.”

18. That case was decided before the policy on bail-bond was formulated. It is now clear that in interpreting the right to bail, section 123A of the Criminal Procedure Code gives the parameters for the grant of the right to bail as follows:

(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—

(a) the nature or seriousness of the offence;

(b) the character, antecedents, associations and community ties of the accused person;

(c) the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;

(d) the strength of the evidence of his having committed the offence;

(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—

(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;

(b) should be kept in custody for his own protection.

19. In Kelly Kases Bunjika vs. Republic [2017] eKLR, Muriithi, J was of the view that:

“The second limb of paragraph (b) of sub-section (1) of section 123A must be read separately and disjunctively from the first part so that the Court considers whether the accused ‘if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody’…Of course, the accused is standing trial for all the alleged offences of robbery with violence, escape from lawful custody and assault, and he is entitled to the presumption of innocence. It is no derogation of his right to that presumption of innocence that he is refused bail; it is merely the exercise of the Court’s mandate to grant bail as constitutionally empowered. It only means that the Court finds a compelling reason within the meaning of the Constitution to refuse bail in the particular case.”

20. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail as follows:

The following procedures should apply to the bail hearing:

(a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:

a. That the accused person is likely to fail to attend court proceedings; or

b. That the accused person is likely to commit, or abet the commission of, a serious offence; or

c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances;or

d. That the accused person is likely to endanger the safety of victims, individuals or the public; or

e. That the accused person is likely to interfere with witnesses or evidence; or

f. That the accused person is likely to endanger national security; or

g. That it is in the public interest to detain the accused person in custody.

21. I associate myself with the view expressed by Muriithi, J in Kelly Kases Bunjika vs. Republic (supra) that:

“It is clear that the primary consideration for bail is whether the accused will attend his trial for the charges facing him, and it must, therefore, be a compelling reason if it is demonstrated that “the accused person is likely to fail to attend court proceedings”. The question in this matter becomes whether there is, on a balance of probabilities evidence that the accused is likely to abscond. The accused claims to have a good defence to the charge of escape from custody. The nature of such defence and evidence is not disclosed. The accused merely asserts his “constitutional right to be granted Bond/Bail on reasonable and favourable terms.”

22. From the constitutional point of view, however, an accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial. Therefore, the accused does not have to apply for release on bond since a person on whom rights have been bestowed under the Constitution is not obliged to ask for the same. This right can only be limited where it is shown that there exist compelling reasons not to be released. Those compelling reasons include the ones set out hereinabove. It is however my view that the burden to prove the existence of the said compelling reasons falls squarely on the prosecution. That was the position in Republic vs. William Mwangi Wa Mwangi [2014] eKLR where Muriithi, J held that:

“It is now settled that in the event that the state is opposed to the grant of bail to an accused person it has the onus of demonstrating that compelling reasons exist to justify denial of the Constitutional right to bail…It is trite that the cardinal principle which the court should consider in deciding whether to grant bail is whether the accused will turn up for his trial and whether there are substantial grounds to believe that he is likely to abscond if released on bail.”

23. In this case the opposition to the accused persons’ release on bond is that due to the closeness of the accused persons to the prosecution witnesses, there is likelihood of the accused interfering with the witnesses. In my view the mere fact that the prosecution witnesses are known to the accused or that the accused and the witnesses are related does not necessarily amount to a compelling reason warranting the denial of bail. In most cases murder occurs between person who are well known to each other. Accordingly, there cannot be a blanket position that in such cases bail ought not to be granted under any circumstances. Each case must be determined on its peculiar facts and circumstances in order to determine whether there exist compelling reasons. I associate myself with the opinion expressed in Rep vs. Dwight Sagaray & Others High Court Criminal Case No. 61 of 2012 that:

“For the prosecution to succeed in persuading the court on this criteria (of interference), it must place material before the court which demonstrate actual or perceived interference. It must also show the Court for example the existence of a threat or threats to witness; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and the witnesses among others…, at least some facts must be placed before the court otherwise it is asking the court to speculate.”

24. As regards the severity of the sentence, the accused presumed innocent till proven guilty. Regarding this issue, Ochieng, J in Republic vs. Ahmed Mohammed Omar & 6 Others [2010] eKLR expressed himself as hereunder:

“Meanwhile, before the High Court of Kenya, at Nakuru, my Learned Brother Emukule J., has also had occasion to grapple with an application for bail pending trial. He did so in Republic vs Dorine Aoko Mbogo & Another, Criminal Case No. 36 of 2010; His Lordship expressed the view that;

‘Murder, (like) treason, robbery with violence or attempted robbery with violence are offences which are not only punishable by death, but are by reason of their gravity, (taking away another person’s life, disloyalty to the state of one’s nationality, or grievous assault or injury to another person or his property), are offences which are by their reprehensiveness, not condoned by society in general. It would thus hurt not merely society’s sense of fairness and justice, and more so, the kith and kin of the victim, to see a perpetrator of murder, treason or violent robbery (committed or attempted) walk the street on bond or bail pending his trial. A charge of murder, treason, robbery with violence (committed or attempted) would thus be a compelling reason for not granting an accused person bond or bail.’

Notwithstanding those remarks, the learned judge went ahead to grant bail in that case. I therefore believe that the judge did not, and could not have meant that once an accused person is charged with an offence punishable by death, that is reason enough to deny him bond or bail pending trial.”

25. According to the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, it is nolonger mandatory that those found guilty of murder must be sentenced to death.

26. In my view, the Court is required to explore the possibility of achieving the primary objective of granting bail, which is the attendance of the accused at the trial, by imposing such conditions that would ameliorate the possibility of the exceptions being a hindrance to the fair trial. In this case I have considered the reasons advanced by the prosecution to justify the court’s denial of the release of the accused persons on bail and in my view they do not meet the legal threshold of what amounts to “compelling reasons” for the purposes of Article 49(1)(h) of the Constitution. They are merely possibilities as opposed to probabilities. It has not been contended that any of the accused has made overtures to the prosecution witnesses geared toward compromising the prosecution’s case. To deny bail in the circumstances of this case would amount to basing the court’s decision on speculations and conjectures. That is not the basis upon which a court of law bases its decision. To my mind the apprehensions of the prosecution may be taken care of by imposing conditions which if violated will lead to cancellation of the bond and placing the accused in custody until the case is heard and determined.

27. In other words, the bare allegations made herein that the accused are likely to interfere with the witnesses cannot be termed as forceful, convincing, persuasive, undeniable and gripping.

28. In the circumstances of this case, balancing the interests of the accused, the public, the victim and the complainant, I order that the accused be released on bond pending their trial on the following terms:

a. The accused shall each be released on a bond of Kshs. Five Hundred Thousand (Kshs 500,000. 00) with one surety of the like sum. The said surety to be approved by the Deputy Registrar of this Court.

b. During the pendency of this case, or until further orders of the court, the accused shall appear in court at least once every 30 (thirty) days and in default of any one appearance without justifiable cause, their bond shall stand cancelled and the surety shall be called to account.

c. The accused shall not interfere with any of the witnesses or in any manner influence the prosecution of the case.

d. If the accused violate the conditions stipulated herein their bonds shall stand cancelled and they shall be remanded in custody till the conclusion of their trial.

29. Orders accordingly.

Ruling read, signed and delivered in open court at Machakos 14th day of October, 2019.

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Munyao for the accused persons

Miss Mogoi for the State

CA Geoffrey