[2025] KEHC 1787 (KLR)

Republic v Joel (Criminal Case E048 of 2023) [2025] KEHC 1787 (KLR) (Crim) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 1787 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E048 of 2023

MW Muigai, J

February 6, 2025

Between

Republic

Prosecutor

and

Tobias Nzola Joel

Accused

Ruling

1. The Accused person, Tobias Nzola Joel was arraigned in Court No 1 on 28/7/2023. He was to await the mental assessment report. On 4/8/2023 the mental assessment report was presented filed by Dr Alfred Gitonga and the Accused person was found fit to plead.

2. The Accused person was read in Kiswahili the statement of offence and particulars of the charge /Information and pleaded not guilty.

3. The Committal bundle was to be supplied to Defense Counsel. The Prosecution did not oppose bail/bond granted to the Accused person.

4. The Trial Judge sought Pre-Bail Report to be presented.

5. The Affidavit filed by PC Kennedy Weru of DCI Dandora opposed Accused person being released on bond/bail as later reports from son and sister of the Accused person reported that he made death threats before the murder of the deceased(late wife) on 4/8/2023. The OB reports are annexed and marked KW1.

6. The death threats to the 2 witnesses amounted to interference with witnesses. Bail or bond ought to be considered after they have testified.

7. The animosity between the Accused person and Deceased’s family and children of the marriage could lead to elimination of potential witnesses, unless placed under Witness Protection Program.

8. The Accused person’s personal security and safety cannot be guaranteed given the neighbors in Dandora Phase 3 have sworn to avenge the deceased’s death.

9. The Pre-sentence Report filed on 16/11/2023, the interviews with Accused’s extended family represented by his father was that he grew up normal and obedient child and was of great support to the family.The immediate family, children of deceased and Accused were /are in fear of harm assault violence if their father is released on bond/bail. The children recall death threats in the family and he was an abusive father and had substance and alcohol abuse.

10. The Accused person’s Community from his rural home, Mithiini village do not oppose his release on bond/bail. However, community from Dandora Phase 2 vehemently opposed release on bail/bond. The opinion is that the Accused is/was not suitable to be released on bail/ bond at the time.

11. Replying Affidavit by Tobiaz Nzola Joel, Accused person herein, deposed he enjoys the presumption of innocence until the contrary is proved. He stated that he never made any death threats either before or after his arrest and the Affidavit and Pre -Bail Report have falsely alleged reports were made of the threats but the annexed OB Reports do not confirm the allegation.

12. The Accused person stated that his son is an adult and he did not swear any Affidavit to oppose his release on bail/bond.

13. The Allegation that he will interfere with witnesses is mere speculation and should not be used to deny him bail, he has no intentions whatsoever to interfere with witnesses in the matter.

14. The objection to release on bond is actuated by bitterness by his in laws associated with the unfortunate presumption that he is guilty as charged.

15. The ODPP filed Submissions on 30/11/2023 and reiterated contents of Affidavit and Pre – Bail Report in relation to interference of witnesses and security of Accused person is not guaranteed. Reliance was on the following cases to buttress the Prosecution’s position; Republic vs Victor Kiprotich Cheruyoit [2021] eKLR & Republic vs Peter Chege Mucheru [2018] eKLR

16. The Accused person filed Submissions on 21/11/2023 and relied on Article 49 (1) (h) of the Constitution on the right to be released on bail/bond on reasonable conditions pending trial unless the Prosecution provides compelling reasons as to why the Accused should not be released on bail/bond. The accused person relied on the following cases to support his claim /right to bond/bail. High Court Nairobi Criminal E043/2021 Dominic Inziani vs Republic [2021] eKLR Republic vs Joktan Mayende& 4 others Bungoma High Court No 55 of 2009 & Republic vs Francis Kimathi (2017) eKLR

17. Pursuant to Article 49 (1) (h),“An arrested person has the right … to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released.”

18. Further, by dint of Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence.

19. Hence, in the Bail and Bond Policy Guidelines, it is recommended that:“The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.” (Emphasis added)

20. The Bail & Bond Guidelines then offer the following non-exhaustive factors for consideration in bail applications:a.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.b.The strength of the prosecution case.c.The character and antecedents of the accused person.d.The failure of the accused person to observe bail or bond terms.e.The likelihood of interfering with witnesses.f.The need to protect the victim or victims of the crime.g.The relationship between the accused person and the potential witnesses.h.The best interest of child offenders.i.The accused person is a flight risk.j.Whether the accused person is gainfully employed.k.Public order, peace and security.l.Protection of the accused persons.

21. In Republic v Danson Mgunya & Ano. HCCR NO. 26 OF 2008, Hon. Ibrahim J, (as he then was) comprehensively considered the issues to be considered in determining “compelling reasons” not to release an accused person on bail. He set out the criteria and I have considered it as here under, in respect to this case:The nature of the charges, and the gravity of the punishment in the event of conviction: Ordinarily, where the charges against the accused person are serious, and punishment prescribed is heavy, there is more probability and incentive to abscond, whereas there may be no such incentive in cases of minor offences.The strength of the evidence which supports the charge, and the likelihood of the accused interfering with witnesses or suppressing evidence that may incriminate him:

22. In Republic vs Muneer Harron Ismail & 4 others, H.C. Criminal Revision No. 51 of 2009, Hon. Warsame J. (as he then was) stated as follows:“In deciding whether or not to grant bail, the basic factor or denominator is to secure the attendance of the accused person to answer the charges brought against him. The court has to take into consideration various factors and circumstances; and one paramount consideration is whether the release of the individual will endanger public security, safety and the overall interest of the wider public.

23. This Court applied the above legal criteria to the specific circumstances of this case.To determine the issue of seriousness of the offence, the punishment to be meted out and strength of Prosecution case, the question that begs an answer is when determining the seriousness of the offence and/or punishment to meted on the accused, at what stage of the case should the court form an opinion that the prosecution has a prima facie case having regard to evidence adduced that the case will lead to a particular direction?

24. The Court has not heard all the evidence, in my view the Court will form an opinion that the case will take a particular direction where the prosecution witnesses have testified in court and their evidence is so cogent that even the accused in his defense cannot controvert. The evidence adduced has to be overwhelming, uncontroverted and weighty. In the present application, it is my considered view that it is premature, if not impossible at this stage of the proceedings, to engage in an appraisal of the prosecution evidence and determine which direction it will lead to. So with the above analogy, there are no compelling reasons based on the evidence on record as it is not possible at this stage to determine probative value of evidence.

25. On the other hand, the investigation arm through Investigation Officer and the Care and Probation Service both presented Affidavit and Report that strongly suggest fierce animosity in the family and fear of threat or violence to surviving children of the marriage and deceased’s siblings.

26. Whereas there is no evidence of any of actual threats, the Court must err on the side of caution. There is palpable fear going by the OB reports from deceased’s siblings and son of the Accused person. It is the duty of the Court to protect all surviving members of the family where possible, especially, when brought to the attention of the Court.

27. Although 2 witnesses have since testified, there are other witnesses to testify whose safety and security is at stake. The Accused person’s safety and security is also in question as the residents where the offence occurred vehemently opposed his release on bail/bond and inferred threats to avenge the deceased’s death.

28. The Accused is deemed innocent until proved guilty by law if not he will be acquitted. To balance rights of both victim’s family safety and Accused’s right, especially because of his son’s sentiments, I find that the justice of the case tilts in protecting children of the Accused person whose rights are paramount under Article 53 1 (d) & 2 of the Constitution. For now, bond/bail is denied.

RULING DELIVERED SIGNED & DATED IN OPEN COURT NAIROBI HIGH COURT CRIMINAL DIVISION ON 6/2/2025M.W. MUIGAIJUDGE