[2020] KEHC 2216 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

HIGH COURT CRIMINAL CASE NO. E021 OF 2020

REPUBLIC.................................................................... PROSECUTOR

VERSUS

MARTIN MUNGAI CHARLES alias SPARTA...................ACCUSED

RULING

1. The Applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code for which he pleaded not guilty.

2. By a notice of motion dated 15th September, 2020, the Applicant sought to be admitted on bond pending the hearing and determination of this case. The said application was supported by his affidavit in which he stated that upon his arrest, he had cooperated with the police in investigations and gave a candid account on what he knew as regards the matter. He stated further that during the period he had been in police custody, he had developed chest complications and the police had refused to take him to the hospital.

3. The application was opposed through an affidavit sworn by Cpl. Moses Kirima in which he deponed that the accused together with two other persons stabbed the accused to death on 13th August, 2017 at Canaan Area of Dandora/Korogocho in Nairobi County and immediately thereafter the accused and his two accomplices took flight from Dandora/Korogocho area to unknown place.

4. It was contended that it took the family of the victim a period of three years to trace the accused without success until 23rd August, 2020 when he was arrested for an offence of robbery with violence at Allsops area vide OB No.04/23/9/20 and that the police were yet to locate and arrest his two accomplices, who were still at large and therefore if released on bond, there was a possibility of never finding them.

5. It was deponed that the applicant was not registered as a citizen and therefore his identity was in doubt, raising the possibility of the same absconding from the jurisdiction of this court, going by his previous conduct.

6. In response the accused stated that he was a resident of Dandora ‘1’ sub location as confirmation by the Area assistant chief and that he had not been on the run as he was not aware of the present case. He stated that he tried to apply for his identification card but had not obtained supporting documents since all his parents had died.

SUBMISSIONS

7. It was submitted by Mr. Naulikha for the prosecution that the accused had been on the run and was therefore a flight risk. He submitted further that the accused was using two names of MARTIN MUNGAI and CHARLES MUNGAI alias SPARTA without any supporting identification documents which constituted compelling reasons.

8. It was submitted by Mr. Nyamweya on behalf of the accused that he had a fixed place of abode at Dandora and had given reason for his non-registration as confirmed by the area Assistant Chief. It was contended that non-registration was not a ground to deny him bail, whose purpose was to secure his attendance at the hearing thereof, for which the case of AGNES WAITHERA KAJUJU v REPUBLIC [2019] eKLR was submitted in support.

DETERMINATION

9. I have read the affidavits both in support and opposition to the application herein in detail, together with the submissions and the authorities submitted in support thereof for the purposes of this ruling.

10. Bail/bond is a constitutional right of every accused person under Article 49(1)(h) which may only be limited where there are compelling reasons advanced by the prosecution to the satisfaction of the court. The main objective of bond is to secure the attendance of the accused person at his trial if and when called upon.

11. What constitutes compelling reasons have now been settled in Kenya through judicial pronouncements and the Bail and Bond Policy Guidelines to include:-

a) The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.

Where the charge against the accused person is serious, and the punishment heavy, the courts assume that there are more probabilities and incentives for the accused person to abscond, whereas in case of minor offences there may be no such incentives.

b)The strength of the prosecution case.

An accused person should not be subjected to pretrial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pretrial detention where the evidence against the accused person is strong.

c)Character and antecedents of the accused person.

Although the character and antecedents of the accused person do not by themselves form the basis for denial of bail or bond, they may justify the refusal of bail or bond if they are coupled with other adverse factors.

d)The failure of the accused person to observe bail or bond terms on previous occasionsis a good ground for denying bail or bond.

e)Likelihood of interfering with witnesses.

Where there is a likelihood that the accused will interfere with prosecution witnesses if released on bail or bond, he or she may be denied bail or bond. However, bail or bond will only be denied if there is strong evidence of the likelihood of interfering with prosecution witnesses, which is not rebutted, and if the court cannot impose conditions to the bail or bond to prevent such interference.

f)The need to protect the victim or victims of the crime from the accused person.

g)The relationship between the accused person and potential witnesses.

If the accused person is either related to the witnesses or stands in a position of influence vis-à-vis the potential witnesses, there could arise a legitimate anxiety about the impact the accused person might have on the witnesses, if he or she is released pending trial. However, this factor does not inexorably dictate that the accused person should be denied bail. Instead, it may simply require the police or the court to attach suitable bond or bail conditions to ensure that the relationship between the accused person and potential witnesses does not undermine the interests of justice.

h)The accused person is a flight risk.

Where the accused person is a foreigner who does not have a fixed abode or hosts in the country and Kenya does not have an extradition treaty with the accused person’s country, there is a presumption that he or she is a flight risk and may therefore fail to attend trial if granted bail or bond. The rationale for this presumption is that it would be impossible to prevail upon such a country to return its national to Kenya to be prosecuted should they abscond after being granted bond or bail.

i)Public order, peace or security.

Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would be likely disturb public order or undermine public peace or security.

j)Protection of the accused person.

Pretrial detention could apply where the accused is threatened with lynching for committing a crime.”

12. In this matter it is not disputed that the offence herein occurred on 13/8/2017 and the accused was only arrested on or about 3rd September, 2020. It is also not in dispute that the applicant is currently not registered as a citizen of Kenya and that the same was arrested as a result of an alleged offence of robbery with violence. Whereas non-registration of the accused on its own is not a good ground to deny him bond, I am satisfied that given his past conduct, the accused is likely to be a flight risk. I have also taken note of the fact that the applicants alleged accomplices are still at large and should the accused be released on bond, there is a possibility of the same making it hard for the police to arrest them, which to my mind are compelling reasons to enable me deny him his constitutional right to bail.

13. I am therefore satisfied that the prosecution has placed before me adequate compelling reasons to enable me deny the accused his constitutional right to bail which I hereby do. The upshot of which is that the application herein is hereby dismissed. The accused shall remain in custody pending the hearing and determination of this cause and/or upon further orders by the trial court. And it is ordered.

Dated, Signed and Delivered at Nairobi This 28th Day of October, 2020 Through Microsoft Teams.

..........................

J. WAKIAGA

JUDGE

In the presence of: -

Mr. Okeyo for the State

No appearance for the accused

Applicant present

Court clerk Karwitha