[2022] KEHC 15448 (KLR)

Republic v Kazungu & 2 others (Criminal Case E011 of 2022) [2022] KEHC 15448 (KLR) (1 September 2022) (Ruling)

Neutral citation: [2022] KEHC 15448 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Case E011 of 2022

SM Githinji, J

September 1, 2022

Between

Republic

Prosecution

and

Sharif Thaura Kazungu

1st Accused

Anthony Charo Mwilo alias Tonny

2nd Accused

Harrison Kazungu Kenga alias Fahali

3rd Accused

Ruling

1. The accused persons are charged with the offence of Murder contrary to Section 203 as read together with Section 204 of the Penal Code.

2. The particulars of the offence are that the accused persons jointly with others not before the court on the 4th day of May 2022 at Miji Mithano Village, Ganze Sub-County within Kilifi County, murdered Chadi Kitsao Kadzagamba alias Khawekombe.

3. Ms. Kombe, counsel for the accused persons made an application for their release on reasonable bond terms stating that the accused persons were not a flight risk as they have permanent residences. Further, that the prosecution had not tendered evidence to the contrary.

4. The Prosecution filed an affidavit sworn by No. 78XXX Detective Nicholas Koech in opposing the application for bond who stated that the accused persons jointly with others not before court killed the deceased by beating her using wooden sticks and kicking her with their legs.

5. He stated that after investigations there was enough and overwhelming evidence against the accused persons thus charged before the court with murder in respect of the accused which is a serious offence and if found guilty they may sentenced to death which is an incentive for them to abscond court.

6. It was also stated that as per the evidence gathered so far there are eye witnesses who saw the accused persons beating the deceased with wooden sticks and also kicking her with their legs thus the likelihood of the accused persons interfering and intimidating the key prosecution witnesses if released on bail or bond. The reasons given are that the accused persons are relatives and also neighbors of the prosecution witnesses and also that the accused persons disappeared from home after murdering the deceased and there are other suspects who are still at large.

7. In oral submission in court, Ms. Kombe counsel for the accused persons submitted that there are no compelling reasons by the prosecution as to where the accused should be denied bail or bond as they work in Malindi and not the scene of crime thus unlikely to interfere with the witnesses. Further that they are presumed innocent and the affidavit by the prosecution.

8. Mr. Mwangi for the prosecution submitted that they have raised compelling reasons as to why the accused persons should be granted bail or bond since the persons are relatives of the deceased and neighbors thus may interfere with the prosecution witnesses. He urged the court to take into consideration the nature of the charge and the gravity of the likely sentence as the witnesses may not be put under witness protection as it may involve moving the entire clan. They relied on the William Kimani case that if the accused when released is likely to commit a crime can be denied bail and that the denial is not presumption of guilt.

Analysis and Determination 9. I have considered the arguments advanced by the prosecution and defence counsel.

10. According to the defence counsel, the prosecution has already condemned the accused persons to detention without a hearing.

11. Bail is a constitutional imperative and not absolute hence the court should determine every case based on the circumstances provided.Article 49(i) (h) of the Constitution of Kenya 2010, provides that: -“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.”

12. Further, Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence. 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.”

13. Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates that:(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.

14. And, in the Bail and Bond Policy Guidelines, it is restated as a general guideline in Paragraph 4. 9 that:“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences.”

15. The 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.

16. Justice is better served in these kind of cases if both parties that is, the victim and the accused get justice. The victim’s justice in this case can only be served if the accused person goes through a fair hearing and fair trial and witnesses are enabled to attend court to testify on the truth of what they know, saw, or heard. If an accused person is likely to abscond, then the court will be doing an injustice to the victim of the offence if it releases him on bond only for him to make the trial impossible.

17. The prosecution case is anchored on the availability of eye witnesses to their case. In line with this and the fact the deceased was a neighbor to the accused persons, and that there are other suspects who at large, I am convinced that there exist compelling reasons to warrant denial of bond/bail to the accused persons.

18. The defence argues that the accused persons work in Malindi and are not in any way a flight risk. This has not been supported by any evidence.

19. I find the prosecution’s apprehension that the accused persons are likely to interfere with the witnesses founded and thus they should remain in custody at least until all the prosecution civilian witnesses have testified.It is so ordered.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 1st DAY OF SEPTEMBER, 2022. …………………………………………………S.M.GITHINJIJUDGE