[2023] KEHC 27015 (KLR)

Republic v Kipngetich & another (Criminal Case E019 of 2023) [2023] KEHC 27015 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27015 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E019 of 2023

JK Sergon, J

December 13, 2023

Between

Republic

Prosecution

and

Anthony Kipngetich

1st Accused

Vincent Kibet

2nd Accused

Ruling

1. Anthony Kipngetich, Vincent Kibet the accused persons herein were charged with the information of Murder Contrary to Section 203 as read with 204 of the Penal Code. The Particulars of the information dated 15th November, 2023, are that on 4th November, 2023 at Kamaouli Village, Belgut Sub-County within Kericho County, murdered Sally Chepkoech Matinkwony.

2. The accused persons according to court records were arrested and subsequently arraigned in court. The accused persons were subjected to a mental assessment on 14th November, 2023 and were found to be of sound mind and fit to stand trial.

3. On 28th November, 2023, both accused persons took plea and pleaded not guilty to the charge of murder.

4. As per the court records, Ms. Chepkorir Learned Counsel for the accused persons made an oral application to have the accused persons to be admitted to reasonable bond terms. The court directed that pre-bail reports be prepared and filed by the county probation officer.

5. The county probation officer filed a pre-bail report in respect of Anthony Kipngetich, the 1st accused herein, in the said report, it is noted that the 1st accused has strong ties with family members. The parents of the accused are willing to assist the accused to secure bond and make arrangements for him to be settled at Total Area where they own another land for peaceful coexistence.

6. The social inquiry carried out revealed that the 1st accused started indulging himself into abusing alcohol in 2012. He was once convicted for the offence of being drunk and disorderly way back in 2018. He was convicted to serve two (2) weeks in prison.

7. The family of the deceased were still bitter about the events that culminated in the demise of their kin.

8. The accused’s family members are willing to secure bond for the accused by depositing substantial security and ensure the accused attends court as and when required. The accused enjoys quality relationships with family members who appear responsible. He is not a threat to the witnesses and the deceased’s family members.

9. The village elder and the area assistant chief described the accused as a person well known to them. Following the incident, the community is bitter towards the accused therefore releasing the accused into the community in the name of bond may not be safe for the accused. They therefore held the opinion that the matter be heard and determined while he is under custody.

10. The probation officer noted that the ground is hostile for the 1st accused. Although the family members are ready to settle the accused at Total Area where they own another land, the community and the deceased’s family members are hostile and bitter to an extent of being ready to pursue the accused to Total Area for revenge. The probation officer therefore found that the 1st accused was not suitable to be released on bond.

11. The county probation officer filed a pre-bail report in respect of Vincent Kibet, the 2nd accused herein, in the said report, it is noted that the 2nd accused has no prior criminal record. The accused has strong ties with family members. The parents of the accused are willing to assist the accused to secure bond and make arrangements for him to be settled at Total Area where they own another land for peaceful coexistence.

12. The family of the deceased were still bitter about the events that culminated in the demise of their kin.

13. The accused’s family members are willing to secure bond for the accused by depositing substantial security and ensure the accused attends court as and when required. The accused enjoys quality relationships with family members who appear responsible. He is not a threat to the witnesses and the deceased’s family members.

14. The village elder and the area assistant chief described the accused as a person well known to them. Following the incident, the community is bitter towards the accused therefore releasing the accused into the community in the name of bond may not be safe for the accused. They therefore held the opinion that the matter be heard and determined while he is in remand.

15. The probation officer noted that the ground is hostile for the 2nd accused. Although the family members are ready to settle the accused at Total Area where they own another land, the community and the deceased’s family members are hostile and bitter to an extent of being ready to pursue the accused to Total Area for revenge. The probation officer therefore found that the 2nd accused was not suitable to be released on bond.

16. The right to bail is both constitutional and statutory, the accused person has a constitutional right to be released on reasonable bail terms unless there is a compelling reason not to grant the accused person bail.

17. The right to bail is entrenched in article 49 (1) (h) of the Constitution which states as follows:- "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."

18. As a constitutional right, its enjoyment can only be limited if exceptional circumstances are established. In interpreting the right to bail, section 123A of the Criminal Procedure Code CAP 75 Laws of Kenya sets the parameters for the grant of the right to bail 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."

19. In Republic v John Kahindi Karisa & 2 others [2010] eKLR the court observed as follows; "A murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released." The Constitution does not define the term “compelling reasons”. However, there are several High Court cases that have deconstructed the phrase “compelling reasons” in Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009, the court defined the term “compelling reasons” as follows: “The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.” In the case of Republic v Francis Kimathi [2017] eKLR, the court held that: “… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, a compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution.”

20. In the instant matter, I have taken cognizance of the findings in the pre-bail reports for both accused persons and I find that both reports are not favourable. The probation officer has furnished this court compelling reasons to warrant this court to deny both accused persons bail. Consequently, the application for the accused persons to be admitted to reasonable bail terms is declined for now. The Applicants are at liberty to review the Bail Application for Bail after the lapse of 3 months.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. ...................J. K. SERGONJUDGE