[2023] KEHC 26245 (KLR)

Republic v Langat alias Carren Mutai (Criminal Case E005 of 2023) [2023] KEHC 26245 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26245 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Case E005 of 2023

F Gikonyo, J

November 21, 2023

Between

Republic

Prosecutor

and

Carren Langat Alias Carren Mutai

Accused

Ruling

1. The prosecution opposed the release of the accused person herein on bail. Mr. Okeyo, the prosecution counsel argued that the main witness is the son of the accused and is 12 years old. The prosecution is apprehensive that if the accused lives with the minor she may compromise him. The accused is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code.

2. Ms Ayiecha counsel for the accused orally applied for the release of the accused on bond. She argued that she does not see how the accused will interfere with the minor as she is his mother.

3. According to the affidavit filed by the prosecution- sworn by PC Linus Cheruiyot Talam filed on July 4, 2023, the following is stated to be a compelling reason not to release the accused on bond, to wit: -i.Witness interference -that the accused lives in the same village or neighbourhood with the witnesses and she is mostly likely to interfere with them if she is released on bond terms. One of the prosecution witnesses is a minor and the other witnesses are also close relatives to the accused person. The witnesses are Hillary Kiplangat Mutai aged 12 years- Son, Geoffrey Cheruiyot Mutai brother in law and Mercy Chebet Ngetich-sister-in-law. That these witnesses are vulnerable and most likely to be interfered with.

4. The accused did not file any replies.

Analysis And Determination Right To Bail 5. All persons charged with a criminal offence are entitled to be released on bond on reasonable conditions except where there is a compelling reason not to be so released (art. 49(1)(h) of the Constitution of Kenya, 2010). This is based on the right to be presumed innocent until the contrary is proven (R v Richard David Alden (2016) eKLR.)

Objective Of Bail 6. Bail guarantees the right to liberty. However, bail is granted on the understanding that the accused will attend, and will not prejudice the trial. (Muraguri v Republic).

Compelling Reason And Burden Of Proof 7. The onus of proving compelling reasons under article 49(1)(h) of the Constitution lies with the prosecution- these are reasons that justify the limitation of the right to liberty in the context of article 24 of the Constitution . And, judicial precedent on the specific instances which amount to compelling reason is still growing.

Grounds For Objecting Bond 8. One ground was cited by the prosecution to constitute compelling reason; interference with witnesses.

Interference With Witnesses 9. Likelihood of, or interference with prosecution witnesses is an affront to the integrity of the trial in particular, but also to administration of justice in general, thus, justifiable reason to limit the right to liberty (R. v Patius Gichobi, article 24 of the Constitution )

10. See also a work of the court in R. v Jaktan Mayende & 3 others, that:“…In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice; undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the Preamble to the Constitution of Kenya 2010……Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give skewed evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.”

11. Accordingly, the specific instances of or likelihood of interference with witnesses must be laid before the court with such succinct detail or evidence as to persuade the court to deny the accused bond (R. v Dwight Sagaray & 4 others, 2013 eKLR)

12. The prosecution claims that some witnesses are close relatives of the accused and are likely to be interfered with by the accused. The witnesses have been listed as the son, brother-in-law, and sister-in-law of the accused and they are minors.

13. These are victims of the crime whose rights the court is obligated to uphold and protect. These rights are stated in section 10 of the Victim Protection Act No. 17 of 2014 that: -10(1)a victim has a right to: -(a)Be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;(b)Have their safety and that of their family considered in determining the conditions of bail and release of the offender; and(c)Have their property protected.

14. The presence of the accused amid such witnesses who are close members of her family and are minors, and especially that one of them is her minor son, makes such witnesses vulnerable to harm, intimidation, harassment, fear, tampering, blackmail, and abuse by the accused person. In light of the authority of a matriarch over her minor children, it is highly possible that such witnesses may resign to fear and not give evidence or give skewed evidence to avert unpleasant repercussions.

15. It is therefore, appropriate that these victims should be free from harm, intimidation, harassment, fear, tampering, blackmail, and abuse by the accused persons; a right under section 10 of the Victims Protection Act. It is not also lost to the court that the safety of victims is to be considered in determining bond issues.

16. Consequently, the court finds that the prosecution has proved that the accused is likely to interfere with witnesses herein.

17. In light thereof, emphasis is on the court’s duty to ensure that the integrity of the trial is not prejudiced by unlawful acts of the accused such as interference with witnesses. The integrity of the trial guarantees fair trial (R. v Fredrick Ole Leliman & 4others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR and K K K v Republic [2017] eKLR)

Conclusion And Orders 18. In conclusion, there is a compelling reason not to release the accused person on bail. She will remain in custody during the hearing of the case. The hearing of the case shall however, be fast-tracked.

19. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 21ST DAY OF NOVEMBER, 2023. F. GIKONYO M.JUDGEIn the Presence of:Ayiecha for accused – Moranga holding briefOkeyo for DPP - presentCA – LEKEN