[2023] KEHC 26255 (KLR)

Republic v Martim (Criminal Case E002 of 2023) [2023] KEHC 26255 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26255 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Case E002 of 2023

F Gikonyo, J

November 21, 2023

Between

Republic

Prosecutor

and

Monica Chesang Martim

Accused

Ruling

Bond/Bail Applicatio 1. The prosecution opposed the release of the accused person herein on bail. The accused is facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. Ms Wekesa counsel for the accused prayed for the release of the accused on bond for she is not a flight. that she has a known place of abode and that she will abide by bond terms granted by the court.

3. According to the affidavit filed by the prosecution- sworn by PC William Lopeyok Wamburu filed on 29. 05. 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. Most of the prosecution witnesses are minors and they are close relatives to the accused person. The witnesses are CC 14 years-old niece, SKK aged 17 years-nephew, and EKR aged 17 years-old-nephew. That these witnesses are vulnerable and mostly to be interfered with.

4. The accused filed a replying affidavit sworn on 30. 06. 2023. He averred that she has no intentions of interfering with the said witnesses. She has had a good relationship with her neighbours, relatives, and the community at large and no other person has ever reported her for breach of peace or intimidation as alleged. That she is the sole breadwinner for her five children raising them single-handedly with no other support and all of them are school-going. She has a known place of abode which is her home. She is committed to obeying the orders regarding bond or bail that this court will impose against her. She therefore prays for favourable bond terms.

5. A probation officer’s bail information report was filed on 26. 06. 2023. According to the report, the victim’s family opposed bail/bond citing that the main culprits are still at large.

Analysis and determination Right to bail 6. 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. vs. Richard David Alden (2016) eKLR.)

Compelling reason and burden of proof 7. The prosecution bears the onus of proving compelling reasons under Article 49(1)(h) of the Constitution- these are reasons that justify the limitation of the right to liberty in the context of Article 24 of the Constitution.

Objective of bail 8. The overarching objective of bail is to ensure the accused gets his liberty but also attends his trial. However, in granting bond the court should ensure that the accused does not prejudice the trial (Muraguri v Republic).

Grounds for objecting bond 9. The prosecution cited one ground on which they opposed bail; interference with witnesses.

Interference with witnesses 10. Interference or likelihood of interference with prosecution witnesses is an affront to the integrity of the trial in particular, and to the administration of justice in general, thus, justifiable reason to limit the right to liberty (R. vs. Patius Gichobi, article 24 of the Constitution)

11. See also a work of the court in R. vs. 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 schewed 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.”

12. 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. vs. Dwight Sagaray & 4 others, 2013 eKLR)

13. 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 two nephews and a niece to the accused and they are minors.

14. 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.

15. It is not far-fetched or unfounded that, the presence of the accused amid such witnesses who are close members of her family and are minors, makes the witnesses vulnerable to harm, intimidation, harassment, fear, tampering, blackmail, and abuse by the accused person. It is highly possible that such witnesses may resign to fear and may not give evidence or give skewed evidence to avert unpleasant repercussions.

16. 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.

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

18. 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. vs. Fredrick Ole Leliman & 4 Others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR and K K K vs. Republic [2017] eKLR)

Conclusion And Orders 19. 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 will nonetheless, be fast-tracked.

20. 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:1. CA – Leken2. M/s. Wekesa for Accused3. Okeyo for DPP - present