[2022] KEHC 3194 (KLR)

Republic v Marwa (Criminal Case E002 of 2022) [2022] KEHC 3194 (KLR) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3194 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Case E002 of 2022

F Gikonyo, J

July 6, 2022

Between

Republic

Prosecution

and

Joseph Chacha Marwa

Accused

Ruling

1. The accused herein is facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. On 4th May 2022, the accused through his defense counsel Ms. Mireri orally applied that he be released on reasonable bail terms.

3. According to Mr. Ondimu, the prosecution counsel, the accused should not be released on bail or bond on the basis of two compelling reasons. One; that the accused is a flight-risk; he has no known abode; he was living at the scene of crime with employees; and is a foreign national- Tanzanian. Therefore. Two; the manner the offence was committed shows he is a danger to the victim’s family.

4. In a rejoinder, Ms. Mireri stated that the applicant was a worker and he must have had a place of abode. She insisted that he has right to bail as part of the right to fair hearing. She urged the court not to condemn the applicant unheard for he is innocent until proven guilty. She requested the court to call for pre bail report.

5. The defense had indicated that they will file submission after service with the pre bail report. However, from the record the applicant did not file written submissions.

Analysis and Determination Issue 6. I called for a Probation Report which was filed and I will take it into account. But arising from the Constitution and the oral submissions by parties, the issue for determination is: -whether there are compelling reason not to release the accused on bail or bond.

7. All offenders are entitled to bail or bond under Article 49 (1) (h) of the Constitution except where there are compelling reasons. This is consistent with, inter alia, the right to be presumed innocent until proven guilty (Article 50(2)(a), Constitution of Kenya, 2010).

8. The burden of proving compelling reason lies with the prosecution. As compelling reasons limit the right to liberty, I take the view that, the standard of proof should accord with the article 24 of the Constitution. It must be in the outer limits of balance of probabilities.

9. Whilst bail or bond ensures the accused gets his liberty, it must also guarantee he attends his trial, and does not prejudice the trial. Muraguri v Republic [supra].

10. Are there compelling reasons not to release the accused on bail or bond?

11. From the oral submissions by the prosecution and probation officer’s pre bail report, two main grounds have been advanced as compelling reasons, namely; flight risk and interference with witnesses.

Flight risk. 12. To demonstrate that the accused is a flight-risk, the prosecution has argued that the accused has no fixed abode and that he is a foreign national- Tanzanian. The prosecution argued that there exists risk of the accused interfering with prosecution witnesses, especially the victim’s family given the manner the offence was committed.

13. On the other hand, it is the accused’s contention that he ought to be presumed innocent until proven guilty. His counsel argued that since he was a worker, he mut have a place of abode.

14. According to the Probation Officer’s Pre-Bail Report, the accused is a Tanzanian citizen with no contact nor known relatives within the Kenyan borders. The report states that, based on the information the accused gave to his former employers it is very difficult to establish the correct particulars of his home and family background. Further, the report captures statements by the accused; that his parents separated and was left to fend for himself. He cannot even tell where his parents or siblings are currently. According to the chief of the area where the offence was committed the applicant had committed murder in his home country and had escaped the law, thus, a fugitive of law. The report also states that, no surety was ready, willing and available to stand surety for the applicant from his home country or within Kenyan borders.

15. The probation officer interviewed the parents of the victim stated that immediately after the commission of the offence the applicant escaped to his home country and it only took the intervention of Interpol for him to be arrested and brought to Kenya for this charge. The fact of escape was also confirmed by the investigation officers.

16. In most jurisdictions, the status of foreign national is a red flag for flight-risk. This position is informed by human tendency for a suspect of criminal offence in a foreign state to try to flee to his home country where he is likely to receive some protection from the rigours of complex extradition processes. However, other than a suspect is a foreign national, it is important to establish such other circumstances which make the person a flight-risk. Towards this end, I will examine the evidence the prosecution has adduced in court.

17. I have considered the fact that the accused is a Tanzanian- a foreign national. It has been shown by the prosecution that he has no fixed abode in Kenya or Tanzania. He also claimed that he does not know the current location of his close relatives or his siblings and parents.

18. Furthermore, no one is ready or willing to stand him surety to ensure he attends court for trial.

19. In these circumstances, the prosecution has shown that the circumstances of this case do not evince any possibility or guarantee of attending court. There is also very high possibility of absconding. I find the accused is a flight-risk.

20. Absconding of the accused defeats the whole purpose of criminal trial; to punish the offender as a matter of compelling-state-interest, and render justice to victims of crime. In this sense, being a flight-risk is a compelling reason under article 49(1)(h) of the constitution.

Interference with witnesses 21. On whether the accused is likely to interfere with witnesses, Mr. Ondimu stated that the manner the offence was committed shows he is a danger to the victim’s family.

22. The threshold for interference with witnesses was further explained in the case of Republicvs. Dwight Sagaray & 4 others [2013] eKLR Korir, J. thus:“For the prosecution to succeed in persuading the court on this criterion, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju vs Republic [1973] E.A 284, where the court in dismissing the prosecutor’s fear of interference with witnesses stated that before any one can say there would be interference with vital witnesses, at least some facts must be placed before court otherwise it is asking the court to speculate.”

23. I am aware that, rights of victims are also important consideration in determining bail. According to Section 10 of the Victim Protection Act No. 17 of 2014, as follows: -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.

24. Other than stating that the manner the offense was committed show that the accused is a danger to the family of the deceased, the prosecution has not provided sufficient details of the alleged likelihood of interference with witnesses. There is no set of facts or evidence from which an inference may be premised of the likelihood of interferences of witnesses by the accused; the claim is far-fetched. The allegations were left at very high level of generalization and devoid of such succinct details which would paint a vivid picturesque of how the witness interference is likely to occur. Accordingly, the prosecution has not proved threats to or possibility of interference with witnesses.

25. After carefully analyzing the opposing views on the issue of possible interference with witnesses, I find no cogent material before court to demonstrate actual or perceived interference with witnesses by the accused if released. I reject this ground.

Conclusions and orders 26. The possibility of the applicant absconding trial has been established.

27. On the basis of the foregoing reason, I am satisfied there exists compelling reason to deny the accused bail.

28. The applicant’s application to be released on bail or bond pending trial is rejected and accordingly hereby dismissed. He shall remain in custody during the pendency of his trial. It is so ordered.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 6TH DAY OF JULY, 2022F. GIKONYO M.JUDGEIn the presence of:Okeyo for DPPMs. Mireri for AccusedAccusedMr. Kasaso - CA