[2022] KEHC 2579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL CASE NO. 8 OF 2021

(CORAM: F.M. GIKONYO J.)

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

-VERSUS-

FREDRICK MESEIYIEKI NKOIBON.....ACCUSED

RULING

Bail

1. The accused herein is facing a charge of murder contrary to Section 203 as read with Section 204 of thePenal Code. .

2. On 19th October 2021, the accused through his defence counsel Miss Kudateorally applied to be released on bond pending hearing and determination of the case.

3. Mr. Karanja, counsel for the prosecution opposed the application for bond/ bail on the grounds stated to be compelling reasons by the investigation officer in the affidavit filed in court, and sworn on 12th October 2021 by CPL Joel Langat, to wit: -

a. Witness intimidation and interference- that the brutal murder of the deceased was committed in the presence of the deceased’s wife and mother who are the key witnesses. The accused and immediate neighbor to the deceased’s family and there is no fence separating the two parcels of land.

b. Flight risk- the accused person is facing a very serious charge, murder that attracts maximum sentence of death if convicted and thus increases the temptation to abscond trial.

4. Mr. Karanja, counsel for the prosecution reiterated the contents of the affidavit filed. He proposed that bond issue can be revisited after the two key witnesses have testified.

5. Mr. Okinyi, counsel watching brief filed an affidavit sworn by Likin Kaloi on 29th October 2021 indicating that the victims oppose the bond. Likin Kaloi is the brother to the deceased and is a member of ‘nyumba kumi’ initiative. He deponed that the accused upon mysterious release threaten to harm him and his family. Therefore, there is likelihood of witness intimidation and interference by the accused. he relied on OB4/15/09/2021, Bail and bond policy guidelines, published March 2015, Republic V Fredrick Ole Leliman & 4 Others [2019] eKLR

6. In response, the accused filed a replying affidavit sworn by him on 23rd November 2021. He averred that the mere thought of temptation of absconding by the investigation officer is unfounded as no factual evidence has been provided before the honourable court revealing such likelihood on a balance of probability. That Article 50 provides for presumption of innocence and therefore the statement that the accused participated in the brutal murder is judgmental. The accused denied the allegations raised by the victims. That no proper material evidence has been placed before court to prove compelling reasons. The accused relied on Article 25,49, and 50(2), of the Constitution of Kenya 2010, Republic vs Danson Ngunya &Another [2010]eKLR, Republic V Stephen Robi Marwa & Another [2014] eKLR, Burunyi & Anor Vs Uganda Cr. Appeal No 1968 EA 123and bail and bond policy guidelines, published in March 2015 at page 8 and 9.

ANALYSIS AND DETERMINATION

7. The accused faces a grave charge of murder; but he is still deemed innocent. He has a right under Article 49 (1) (h) of the Constitution to be released on bond or bail pending trial unless there are compelling reasons not to be so released. See Muraguri v Republic [1989] KLR 181,and R. V. Richard David Alden (2016) eKLR.

8. The overarching objective of bail is to restore the liberty of the accused, yet, ensuring that the accused attends trial. Muraguri v Republic[supra]. Relevant matters to be considered by the court in an application for bail include: the nature of the charge; the likely sentence; previous criminal records, the views of the family of the victim, the possibility of interference with witnesses; the temptation to abscond; and, the safety of the accused.

9. The Victims Protection Act 2014 requires the views of victim’s family to be taken into account at this stage.

Applying the test

10. Has the prosecution established compelling reasons not to release the accused on bond? The affidavits by the respective parties speak to two grounds namely; intimidation and interference with witnesses, and being a flight risk.

Intimidation and interference with witnesses

11. The prosecution alleges likelihood of intimidation and interference with prosecution witnesses. Intimidation and interference with witnesses is an affront to the administration of justice and therefore a compelling reason contemplated by Article 49 (i) (h) of the Constitution. Accordingly, the specific instances of or likelihood of interference with witnesses must be laid before the court with such succinct detail or evidence as to persuade the court to deny the accused bond. See R. V. Jaktan Mayende & 3 others, R. V. Patius Gichobi,R. V. Fredrick Ole Leliman & 4 Others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR andR. V. Dwight Sagaray & 4 others, 2013 eKLR,

12. As the law stands, it is the duty of the court to give effect to the rights of victims expressed in Section 10 of the Victim Protection Act No. 17 of 2014, as follows:-

10 (1) a victim has a right to:-

a. Be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;

b. Have their safety and that of their family considered in determining the conditions of bail and release of the offender; and

c. Have their property protected.

13. In the present case the prosecution stated in their affidavit that the accused is likely to intimidate and interfere with key witnesses. The prosecution has indicated that two of the witnesses are close family members of the deceased- the widow and the mother. The brutal murder of the victim was committed in their presence. The two are the key witnesses. The accused is immediate neighbor to the deceased’s family and there is no fence separating the two parcels of land.

14. The key witnesses are vulnerable and feel vulnerable owing to their relationship to the deceased. In this instance the deceased’s mother and wife are said to be key witnesses to the brutal murder. The vivid details on how the deceased was murdered is certainly fresh in their minds. The presence or possibility of presence of the accused amidst or in the vicinity of the said witnesses would make them feel threatened and vulnerable, and may recede to fear. I do note also that a witness named Mr. Kaloi has claimed that the Accused threatened him. These claims are convincing and hold sway that the witnesses are likely to be afraid to testify freely if they know that the accused person is walking about freely. The court cannot in the interest of justice turn a blind eye to such grave allegations because the same can impact negatively on the administration and dispensation of justice.

Flight risk.

15. The prosecution made arguments in the affidavit of CPL Joel Langat in support of the ground that the accused person was a flight risk; that the accused may abscond because of the gravity of the offence and sentence. This argument is neither here nor there, for no evidence has been tabled before this court so as to provide the argument with power and grace. No attempt was made to show that the accused was planning to leave the jurisdiction of the court or had attempted or made arrangements to leave the country. For the above reasons stated, that ground is not sustainable. I reject the argument.

Conclusion and orders

16. In conclusion, this court finds that, on the basis of the evidence adduced, there is real likelihood of interference and intimidation of witnesses especially the key witnesses- the widow and mother of the deceased and who are members of the victim’s family. The murder was carried out and executed in their presence; the encounter of such frightful crimes would send shivers to their spines to learn that the accused is freely loaming within their vicinity. In such circumstances, it is not strange that witnesses would resign to fear. This is a compelling reason for which bail may be denied. Accordingly, I deny the accused bail and he shall remain in custody at least until the said witnesses have testified. Thereafter, an application for bail by the accused, may be considered, but within the circumstances of the case and the law.

17. Given the result of this ruling, the Court directs that the hearing of this case be on priority basis.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 9TH DAY OF FEBRUARY, 2022

F. GIKONYO M.

JUDGE

In the presence of:

1. Ms. Torosi for DPP

2. Ms. Kudate for the Accused

3. Kasaso – CA

4. Okinyi for Victims - absent