[2022] KEHC 13508 (KLR)

Republic v Kipkuren (Criminal Case E037 of 2022) [2022] KEHC 13508 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13508 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E037 of 2022

TM Matheka, J

October 5, 2022

Between

Republic

Prosecution

and

Musa Boswany Kipkuren

Accused

Ruling

1. Musa Boswany Kipkuren is charged with murder contrary to section 203 as read with section 204 of thePenal Code.

2. It is alleged that on the June 7, 2022 at Tumaini area in Rongai sub county within Nakuru county he murdered Shedrack Kiplangat Keitany.

3. Plea was taken on June 27, 2022 and the accused pleaded not guilty. He was represented by Ms Githae and the state by Ms Murunga. There was no objection to bond and the same was set at Kshs 300,000/= with surety of same amount. The court being alive to the fact that it was possible the accused may not raise the bond terms, directed Probation and After Care Services (PACs) to prepare a bail review report (in place of a pre bail report).

4. I note that as at the time of writing this ruling the accused is not yet out on bond. The report was filed on August 4, 2022.

5. I have carefully perused the report, and the only issue for determination is whether the order on bond made on June 27, 2022 ought to be reviewed.

6. This is in line with the constitutional provision at article 49 (I) (h) that bond terms ought to be reasonable.Section 123 (2) of theCriminal Procedure Code requires that the;“amount of bail shall be fixed with due regard to the circumstances of the case and, and shall not be excessive.”

7. Reasonable bond terms will be guided by the circumstances of the case and the requirement that bail shall not be excessive. In arriving at that determination the court requires a social inquiry report to lay out the requirements of section 123A (1), viz: the character, antecedents, associations and community ties of accused.

8. From the Probation and After Care Services Report, the accused was 23 years old at the time of the arrest, the person whose death he is alleged to have caused was aged 55 years old. He is married with 2 minor children. His family and community have no problem with his release on bond, the family is prepared to stand surety for him.

9. However, at the time the report was filed the family of the deceased was reluctant to have the accused released on bond saying that they were still grieving. In fact the probation officer who filed the report recommended that the accused be held in custody pending the reconciliation process and the conduct of certain traditional rituals between the two families, whose burden is on the accused to commence.

10. This court is alive to the importance of AJS in all matters and the role it plays in ensuring that substantive justice is done, both to the parties before it and within the community. Traditional dispute resolution mechanisms have their place but they must happen within the confines of article 159(3) of the Constitution:(3)traditional dispute resolution mechanisms shall not be used in a way that—(a)contravenes the bill of rights;(b)is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or(c)is inconsistent with this Constitution or any written law.

11. The views of the victim’s family are relevant, but the fact that the family of the accused has not started a reconciliation process cannot be the reason to delay release of the accused on bond. The accused person has pleaded not guilty. It is the accused’s constitutional right to be assumed innocent until he is proven guilty. To accept the probation officer’s recommendation would be tantamount to concluding that the accused had admitted extra judicially, to committing the offence, that he is guilty, and that his release on bond is subject to his reconciling with the family of the deceased. That would violate the accused’s rights to be assumed innocent until proved guilty.

12. I have carefully considered the report. I have considered the fact that the prosecution did not object to bond. I have noted that the accused has no antecedents, and is considered low flight risk by the family, community and in the probation officer’s own assessment. He has a wife and young children and may not have the incentive to abscond.

13. There is nothing to show that either the accused is a risk to the family of the victim or that his own life will be at risk.

14. All in all the order for accused to be released on bond remains in force.

15. The family has one more piece of land in Baringo. They intend to use it as surety for the accused. Bond is reviewed to Kshs 200,000/= with one surety of the same amount.

Final Orders;- 16. Bail terms are reviewed as follows;Accused be released on bond of Kshs 200,000/= with surety of similar amount.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 5TH DAY OF OCTOBER 2022. Mumbua T. MathekaJudgeCA JenniferMs. Githae for accusedMs. Murunga for stateAccused present