[2023] KEHC 24003 (KLR)

Republic v Kogei (Criminal Case 59 of 2023) [2023] KEHC 24003 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24003 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 59 of 2023

RB Ngetich, J

October 19, 2023

Between

Republic

Prosecution

and

Musa Kipyegon Kogei

Accused

Ruling

1. The accused Musa Kipyegon Kogei 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 on the 28th day of January, 2023 at Mogotio Township within Mogotio Sub- County in Baringo County, murdered Jemimah Wangari Ngugi.

2. On the 24th July,2023 the charge and its full particulars were read over- and explained to the accused who pleaded not guilty. The prosecution informed the court they were not opposed to the accused being released on bond. The court called for pre-bail report be availed to court to assist the court in determining bond terms.

3. Prebail report dated 18th September 2023 was filed by the Probation Officer. From the report, the victim’s family wished that the accused remains in custody to avoid interference with witnesses and fear that the accused may harm the victim’s sister who was very close to the deceased; further the local administration stated that the accused is a well-known person who is not a trustworthy and a flight risk; and that he had at one time stolen his parent’s cow and when he was asked, he threatened to kill them. That most of the time he was staying away from home and nobody knew what he was involved with and that his life is in danger as the community is still hostile towards his actions; that the accused’s father had shown interest to stand surety for him, however he had no security for the same and other family members were not willing to stand surety for him.

Determination 4. As per Article 49(1)(h) of the Constitution, bail is constitutional right of an accused which can only be denied if there is compelling reason. Further, under Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible and pretrial detention should not constitute punishment; the fact that accused persons are not convicts should be reflected in their treatment and management; the accused persons should not be subject to the same rules and regulations as convicts.

5. Further, section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, provide factors that should be taken into consideration in bond determination as hereunder:- (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.

6. And under the Bail and Bond Policy Guidelines, the general guideline under Paragraph 4. 9 is 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.

7. 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.

8. 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 likely hoof of absconding and the safety of the accused.

9. From prebail report, the family of the deceased are still angry and there is fear that the accused may harm the victim’s sister who was very close to the deceased and who is a witness in the case. I also take note of negative report by the local administration to the effect that accused is not a first offender and a flight risk. The Victims Protection Act 2014 enjoin the court to consider the views of victim’s family. In view of the above, I am of the view that there are compelling reasons to deny accused bond at this stage of trial.

Final Orders: - 10. 1.Accused is denied bond.2. Accused may renew bond application if circumstances change.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 19TH DAY OF OCTOBER 2023. …………………………………RACHEL NGETICHJUDGE