[2017] KEHC 1583 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL MURDER NO. 2 OF 2017

REPUBLIC……………….......PROSECUTOR

VERSUS-

JOHN MUCHIRA GATIMU…..…..ACCUSED

RULING

1. The accused person John Muchira Gatimu brought a Notice of Motion dated 10th April, 2017 praying that he be released on bail/bond pending trial. The application is based on the following grounds:

a. That the accused person has a constitutional right to bail pending the hearing of this case.

b. That the accused person is a farmer working and residing at Wakaburu Village Thirikwa sub-location Kirinyaga East sub-County within Kirinyaga County.

c. That the law presumes that the accused person is innocent unless or until proven guilty.

d. That there are no compelling reasons that may render the accused person unsuitable for bail.

e. That the accused will abide to any conditions put by the honourable Court.

2. The application is supported by the affidavit of the applicant sworn on 10th April, 2017. He depones that he has a right to be released on bail and that he has been in custody since 2th march, 2017. That the law presumes that he is innocent until proved guilty. That he is innocent and there are no compelling reasons to warrant the Court to deny him bail.

3. The State did not oppose the application but urged the Court to call for a social inquiry to guide the Court. He also urged the Court to consider that the offence is serious and put stringent conditions.

4. I have considered the application. Bail pending trial as a constitutional right as provided under Article 49 (1) (h) of the Constitution which states:

“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.”

Bail pending trial is a principle of fair trial. An accused person is presumed innocent until the contrary is proved. Article 50 (2) (a) provides:

“Every accused person has a right to a fair trial which includes the right to:-

To be presumed innocent until the contrary is proved.”

The right to bail can only be denied if the State proves that there are compelling reasons not to grant bail. The burden is on the prosecution. In the case of the Republic -V- Danson Ngunya & Another (2010)eKLR High Court, the Court adopted the reasoning in M. Lunguzi -V- Republic CMSCA Appeal No. 4/995 the learned Judge stated:-

“In my judgment, the practice should never be to require the State to prove to the satisfaction of the Court that in the circumstances of the case the interest of justice requires the accused to be deprived of his right to be released from detention. The burden should be on the State and not the accused. He who alleges must prove. That is what we have always upheld in our courts. If the State wants the accused to be detained pending his trial then it is upto the State to prove when the Court should make such an order……………

The State did not oppose the release of the accused on bail. All they said is that the offence is serious and the Court should call for a social enquiry. In this regard I have considered the Judiciary Bail Policy guidelines. The Policy guidelines defines a bail report as follows:

“A social enquiry report based on information generated about the background and community ties of an accused person, and its purposes are to verify information provided to Court by the accused person, to assess the likelihood that the accused person will appear for trial and enable the Court to impose reasonable bail terms and conditions.”

At Chapter 4:26 it is stated:

“The Court may request for a bail report where it considers that it does not have sufficient information to make a fair and appropriate bail decision including the following instances:

a. Where there is doubt on the information on the accused person relating to the grant of bail;

or

b. Where the prosecution objects to bail with plausible reasons; or

c. Where the accused person has been given bail but fails to meet bail terms and seeks review of those terms; or

d. Where the victim of the crime contests the grant of bail or applies for review of bail conditions, or

e. On the Court’s own motion where it deems necessary.

It is clear from the foregoing that the probation report is not a mandatory requirement. The Court can still give a ruling without the report. These factors must be presented before Court for it to order a pre-bail report. It is expected that when the representative of the Director of Public Prosecutions addresses the Court that they have no objection, they have conducted a background check and found there are no compelling reasons to deny the accused bail. Where the State does not oppose bail, there is no reason why the Court should call for the report. The State has a duty to present facts which will lead the Court to order for such an inquiry. The State has the burden to prove that there are compelling reasons to deny bail. If they wish the Court to call for such social inquiry report, the proper procedure would be to call for the report first then decide whether to oppose bail or not. The State must lay a basis for calling for such report. This would ensure that they are well informed on the background of the accused. I am of the view that having not adduced any compelling reason(s) to deny the accused bail, it is not necessary to call for a pre-bail report.

5. The State urged the Court to consider that the offence is serious. This is a fact to be considered when setting the bail terms. In conclusion I find that there being no compelling reason proved to deny the accused person bail, I am of the view that he should be allowed to enjoy the constitutional right to bail. I order that the accused will be released on a bond of Ksh.1,000,000/= plus one like surety pending trial.

Dated and delivered at Kerugoya this 2nd day of November, 2017.

L. W. GITARI

JUDGE

Read out in open Court, Mrs Makuoro for accused who is present, Mr. Omayo State Counsel for the State, Court Assistant Naomi Murage this 2nd day of November, 2017.

L. W. GITARI

JUDGE

2. 11. 2017