[2023] KEHC 27409 (KLR)

Republic v Keter (Criminal Case E013 of 2023) [2023] KEHC 27409 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27409 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case E013 of 2023

DO Chepkwony, J

December 14, 2023

Between

Republic

Prosecution

and

Christopher Kiptum Keter

Accused

Ruling

1. The Accused is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.The Particulars of Offence are that:-“On diverse dates between 5th - 6th February, 2023 at Gatongora Area in Ruiru Sub-county within Kiambu murdered Christine Makena Maingi”.

2. On 5th April, 2023, the accused pleaded ’Not Guilty’ to the offence and thereafter, his counsel has him to be released on bail/bond terms on the grounds that the accused is not a flight risk, has a known place of abode and shall comply with the conditions that may be set out by the court.

3. The prosecution together with the family of the deceased opposed the releaseof the accused on bail on bond terms and filed their Affidavits in opposition.

4. The prosecution filed a Replying Affidavit which was sworn by No. 99994 PC Jamlick Mwangi the investigating officer in the matter on 11th April, 2023. He has deponed that there are compelling reasons why the accused should not be released and has relied on the provisions of Section 123 A(1) of the Criminal Procedure Code and the Bail and Bond Policy Guidelines to urgue out what these reasons are.

5. According to the Investigating Officer, after committing the offence, the accused went into hiding and was arrested after several days. He states that the accused does not have a permanent address and is a flight risk who is likely to abscond court jurisdiction. He also states that the main prosecution witnesses are well known to the accused and he is likely to interfere with them. The deponent is of the view that the prosecution has concrete evidence against the accused to warrant reasonable expectation of a conviction and therefore holds that the court should not release the accused person on bail and bond at this stage.

6. The family of the deceased also filed their affidavits opposing the release of the accused person on bail and bond terms. Muchui Thambura Maingi, a brother to the deceased filed his affidavit on 27th April, 2023 and stated that he had met the accused person at the deceased’s house a few days to the murder and he introduced himself as Towet from Bomet East which he later established was not true. He went on to state that the accused told him that he had been assisting the deceased with prayer and bible study, which got him concerned and he called their mother Charity Maingi. He informed her of the accused and later, the mother called the deceased who told her that the accused is a Luhya from Mlolongo which was not true.

7. He stated that the deceased was later found murdered and he positively identified the accused on the identification parade. According to the deceased brother, and he holds that he suspects that the accused could be a serial killer targeting young women because at the time of his arrest, the accused was found with a young lady who is now a prosecution witness and is fearful that he may interfere with her evidence.

8. The deceased ‘s brother has also stated that the accused operates three different face book accounts where his identities are hidden and he does not have a family or a fixed abode. On this account, he is therefore a flight risk, with no meaningful employment. Further, there is a strong case against him since there is a cctv footage showing him at the deceased’s house, which is evidence of him being likely to interfere with witnesses particularly himself since they had met and interacted with him before.

9. The other affidavit has been sworn and filed by Joseph Thambura Maingi father to the deceased on 27th April, 2023 whereby he has relied on the same grounds as those of his son Muchui Thambura Maingi, in opposing the release of the accused on bail/bond which this court shall not reiterate.

10. The court ordered for a social inquiry to be conducted on the accused and Bail Information Report to be filed. The same was filed on 16th June, 2023 and the conclusion thereof was that the accused was an active member of Catholic Church, having engaged in charismatic activities of the church at the Mukuru kwa Njenga. The report also stated that his prayer mate and friend indicated that he was willing to surrender a title deed to stand surety for him. In respect of the report the victim of the family were fearful that the release of the accused would put their lives in danger especially since he has been at their home and that he might interfere with the witnesses that have been put forth in respect of the case.

11. Both the prosecution and the deceased’s family filed their respectiveSubmissions opposing the release of the Accused on bail/bond, all which the court has considered.

Analysis and determination 12. In considering the Applicants application, I have carefully read through the affidavits filed by all parties in regard thereto and find the issue for determination being whether the applicant (Accused) can be admitted to bail/bond.

13. The right of an accused person to bail and bond terms is provided under Article 49(1)(h) of the Constitution which states that: -‘An accused person has the right …(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.’

14. What the court is expected to consider in granting bail and bond terms is if the reasons tendered by the prosecution are compelling enough to warrant the denial of bail and bond terms for an accused. The Court in the case of Republic v Joseph Thiongo Waweru & 17 Others [2017] eKLR defined compelling reasons as follows: -“The Constitutional standard for denying bail is “compelling reasons” test. The burden is on the Prosecution to establish the existence of the “compelling reasons” that would justify denial of bail. Our emerging jurisprudence on the question is clear as to the kind of evidence needed to establish the “compelling reasons”: The evidence presented must be “cogent, very strong and specific evidence” and that mere allegations, suspicions, bare objections and insinuations will not be sufficient.”

15. There are various factors which are required to be considered in a bail and bond application. The factors to be considered as provided for under Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, include:(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.

16. The Judiciary Bail and policy guidelines under paragraph 4. 9 has also outlined the factors that ought to be considered by the courts in their decisions on whether to grant bail and bond terms and they include: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.

17. According to the Bail and Bond Policy Guidelines, it has been 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.”

18. Having read through the affidavits filed by either party, the court finds that owing to the serious nature of the offence, there is need to protect the prosecution witnesses so as to preserve this evidence particularly the evidence of the lady said to have been with the accused at the time of his arrest and that of the brother to the deceased who met and spoke to the accused few days prior to the murder. It has also been stated that the accused has no known place of abode or any meaningful employment, which only leads to the conclusion that he is a flight risk likely to abscond court. The applicant/accused has not offered any evidence to rebult these claims against him.

19. In view of these reasons that have been advanced by the prosecution, the investigating officer and the deceased’s family, the court finds the same to be compelling enough to warrant the applicant/accused to be denied release on bail and bond terms. The court therefore declines to grant the accused bail and bond terms and orders that he remains in remand, until there is demonstrated change of circumstances in the pendency of trial.It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 14TH DAY OF DECEMBER, 2023. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Inva counsel for stateM/S Masaki counsel for accusedMr. Munene holding brief for Mr. Ayieko watching brief for victim familyCourt Assistant - Martin