[2023] KEHC 26666 (KLR)

Republic v Langat (Criminal Case E018 of 2023) [2023] KEHC 26666 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26666 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E018 of 2023

JK Sergon, J

December 13, 2023

Between

Republic

Prosecutor

and

Josphat Kipkoech Langat

Accused

Ruling

1. Josphat Kipkoech Langat the accused person herein was charged with the information of Murder Contrary to Section 203 as read with 204 of the Penal Code. Particulars of the information dated 14th November, 2023, are on 18th October, 2023 at Mindililwet Trading Centre, Kebeneti Location within Kericho County, murdered Jackson Kipkemoi Ngetich.

2. The accused person according to court records was arrested on 31st October, 2023 and arraigned in court on 14th November, 2023.

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

4. As per the court records, Ms. Chebet Kirui Learned Counsel for the accused person made an oral application to have the accused person released on bond. The prosecution in response to the application stated that they did not have compelling reasons to oppose the application for bail, consequently, the court directed that a pre-bail report be prepared and filed by the county probation officer.

5. The county probation officer filed a pre-bail report, in the said report, it is noted that the deceased’s family members are still bitter and opposed to the release of the accused on bond. They are yet to come to terms and accept the absence of the deceased who was a family man and supportive to his school going children, they therefore were not willing to accommodate the presence of the accused in the community.

6. The accused’s family members are not willing to deposit the requisite security for the release of the accused on bond. They are afraid that he is not reliable to attend court. Thus qualifies him a flight risk. They hold to the opinion that he should be held in remand custody for him to reexamine his conduct and to create time for the family and clan members to approach the deceased’s family for reconciliation and seek forgiveness.

7. The accused allegedly associates with acquaintances of questionable character. This has greatly severed his relationship with his family and the community, he has a bad reputation in the community.

8. The probation officer noted that the accused has an unpleasant relationship with his family and the community, he is not reliable to attend court, the deceased’s family are still bitter, the accused is a flight risk and no one in the family or the community is willing or ready to deposit the requisite security to secure his release. The probation officer noted that he has a fixed abode at home, however, his whereabouts are sometimes not known and therefore deemed the accused a flight risk. Considering the above compelling reasons the probation officer recommended that the accused is not fit for release on bond.

9. 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.

10. 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."

11. 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."

12. 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.”

13. In the instant matter, I have taken cognizance of the findings in the pre-bail report court and find that report is not favourable, the probation officer has provided compelling reasons to warrant this court to deny the accused herein bail. Consequently, the application for the accused's release on bond is declined for now. The applicant to review the Application for bail after the lapse of 3 months from the date hereof.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. J. K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor – Mr. MusyokiAccused – Present in PersonMalel holding brief for Chebet Kirui for Accused