[2023] KEHC 25671 (KLR)

Republic v Keter (Criminal Case E001 of 2023) [2023] KEHC 25671 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25671 (KLR)

Republic of Kenya

In the High Court at Eldama Ravine

Criminal Case E001 of 2023

RB Ngetich, J

November 16, 2023

Between

Republic

Prosecution

and

Kiprop Kaisang Keter

Accused

Ruling

1. The accused Kiprop Kaisang Keter has been charged with the offence of Murder Contrary to section 203 as read with section 204 of the Penal Code. Particulars of the charge being that the accused person on the 15th June,2023 at Kapmngoech village, poror location in Koibatek Sub- County in Baringo County, murdered William Kipruto Chemutt.

2. The charge and its full particulars were read over and explained to accused 19th September, 2023. He denied the charge and a plea of not guilty was entered. The court then made an order that a pre-bail report be availed to court to assist the court in determining bond terms.

3. The Pre-bail report was filed on the 19th September, 2023. The report indicates that the accused was born in the year 1983 and he attended school up to class 3 where he dropped out due to lack of proper parental guidance following the separation of his biological mother and his father; he was raised by a step mother who according to him had no regard for his educational pursuit. Upon dropping out of school, he engaged in herding and later embarked on saw –milling up to the time of his arrest. He is married with 4 children the youngest being aged about 1 year old.

4. The accused denies committing the offence and states that his family members will be willing to bail him out by use of a Title Deed of land which measures approximately 5 acres or a motor vehicle Log book.

5. The community did not associate the accused person with past criminal activities in the community. The father to the accused however expressed fear that he may go back to consume alcohol which may expose him to provoking the relatives of the victim. The inquiry from the area administrators indicated low chances of committing another offence. The accused person stated that his safety is not at risk if released on bond while his father and uncle are of the contrary opinion.

6. The accused’s parents are willing to bail him out by use of title deed but fear for his safety. The family of the deceased are not comfortable with the accused person being granted bond since they are still bitter due to the offence he committed.

7. The probation officer’s opinion is the accused person is not suitable to be admitted to bond now since the matter is still fresh in the minds of the deceased’s family. They are of the opinion that the prayer for bond be revisited later so as to allow for healing.

Determination 8. Under article 49(1)(h) of the Constitution, bail is accused’s constitutional right unless there is some compelling reason to deny him bond.

9. Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, provide circumstance to be considered while determining whether to allow or deny an accused bond. The section provides 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.

10. And, under the Bail and Bond Policy Guidelines, general guideline is provided under Paragraph 4. 9 as follows: -“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.”

11. 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.

12. The overarching objective of bail is to ensure the accused attends his trial. Relevant matters to be considered by the court 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.

13. However, from the prebail report filed, the family of the victim are still bitter. The accused’s father is willing to stand surety for him but fear that he may go back to drinking and in the process, provoke the family of the victim to retaliate. In essence, there is no guarantee for accused’s safety while out on bond especially now when the victim’s family have not recovered from the loss of their loved one.

14. In view of the above, I find that there is need to ensure that accused is safe and as at now, his safety is not guaranteed if released on bond at this stage of trial

15. Final Orders: -1. I decline to release accused at this stage of trial.2. Accused may renew bond application when circumstances change.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Karanja – Court Assistant.Accused present.Ms Ratemo for State.