[2023] KEHC 26177 (KLR)

Republic v Michieka alias Kadonyelee & 3 others (Criminal Case E027 of 2023) [2023] KEHC 26177 (KLR) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26177 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Case E027 of 2023

TA Odera, J

December 5, 2023

Between

Republic

Prosecutor

and

Tom Onyancha Michieka alias Kadonyelee

1st Accused

Suleman Moi Otoro

2nd Accused

Jacob Erick

3rd Accused

Wycliffe Ontingo Ondari alias Ka Youth

4th Accused

Ruling

1. The accused persons in this matter are charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The accused persons were arraigned in Court on June 26, 2023 and all 4 pleaded not guilty on July 24, 2023.

2. Mr. Ochengo for the State opposed the application for bond. He submitted that he relied on the Affidavit sworn on June 26, 2023 by No. 64103 Sergeant Alfred Ruto and filed on June 27, 2023. He submitted that the reasons were in paragraphs 4, 5 and 6 of the Affidavit.

3. Mr. Magara for the 1st, 2nd and 4th accused persons submitted that the right to bond is a constitutional right. He submitted that the Paragraphs 4, 5 and 6 of the prosecution’s affidavit did not contain any compelling reasons only that the accused persons’ lives were in danger. On being a flight risk, Mr. Magara submitted that there was no evidence supporting the allegation. He also submitted that there was no evidence from the witnesses allegedly threatened by the accused persons. He urged the court to release the 1st, 2nd and 4th accused persons on bond.

4. Mr. Omwenga for the 3rd accused person submitted that bail is a constitutional right. He also submitted that there were no compelling reasons given by Sgt. Ruto. He submitted that the said Sergeant did not indicate who among the 4 accused persons allegedly threatened the witnesses. He submitted that no names of the family members or particulars of community members who were allegedly threatened were provided. He urged the court to dismiss the objection by the prosecution.

5. In response, Mr. Ochengo submitted that bond is not an absolute constitutional right. Paragraphs 4, 5 and 6 of the affidavit were averments made by a police officer who had a duty to maintain law and order. He submitted that the contents were true and compelling enough and urged the court to deny the accused persons bond in the meantime.

Determination 6. I have considered the accused persons’ application, the affidavit by Sgt. Ruto and the Parties’ submissions in connection with this matter.

7. I have also considered the probation officer’s bail assessment Report for each of the 4 Accused Persons.

8. To be released on bond or bail is a Constitutionally recognized right. Article 49(1)(h) of the Constitution provides that an accused 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. Section 3 of the Bail and Bond Policy Guidelines provides for the general principles as relates to the process of bail and bond decision-making which principles were derived from international best practices.

9. However, the said right is not absolute and may be limited in certain instances, well in line with article 24 of the Constitution.

10. Indeed, section 123A of the Criminal Procedure Code, cap 75 of the Laws of Kenya, provides for the considerations that a Court should have in mind when considering an application for bail or bond. They are:a)The nature and 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 fulfillment of obligations under previous grants of bail; andd)The strength of the evidence of his having committed the offence.

11. Section 4. 9 of the Bail and Bond Policy Guidelines provides that the primary factor to be considered by the courts in bail decision-making is whether the accused will appear for trial. The following factors, which are by no means exhaustive, should be considered:a)The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person if found guilty.b)The strength of the prosecution case.c)Character and antecedents of the accused person.d)The failure of the accused person to observe bail or bond terms.e)Likelihood of interfering with witnesses.f)The need to protect the victim(s) of the crime.g)The relationship between the accused person and potential witnesses.h)Child offenders.i)The accused person if a flight risk.j)Whether accused person is gainfully employed.k)Public order, peace or security.l)Protection of the accused person.

12. These conditions were restated in the cases of Republic v Daniel Ndegwa Wachira [2015] where Justice Mativo (as he then was) referred to the case of the Supreme Court in Nigeria in Alhaji Mujahid Dukubo-Asari v Federal Republic of Nigeria SC 20A/2006; the Court of Appeal case of Michael Juma Oyamo &another v Republic [2019] eKLR pronounced itself as such; and the case of Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR) (3 December 2021) (Ruling) where Justice Mativo (as he then was) referred to the case of the Supreme Court of India in Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 which Court laid out similar conditions to be considered in an application for bail pending the hearing of an appeal.

13. In all these, the common denominator is that it is for the prosecution to establish the existence of these compelling reasons. See Paragraphs 23 and 28 of the Court of Appeal case of Michael Juma Oyamo &anotherv Republic [2019] eKLR

14. Looking at Sgt. Alfred Ruto’s affidavit, 3 reasons have been proffered by the prosecution as to why the accused persons should not be admitted to bail. They are:i.Interference with witnesses.ii.Flight risk.iii.The Accused Persons’ lives were in great danger from the community.

15. I will consider each of these.

Interference with Witnesses 16. I am persuaded by the holding in Republic v Dwight Sagaray & 4others [2013] eKLR, where it was held“As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criterion however, 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 v Republic [1973] EA 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 should be led to the court, otherwise it is asking the court to speculate.”

17. I am in agreement with the accused persons’ Counsels submissions. While I appreciate the contents of Sgt. Alfred Ruto’s Affidavit, the allegations of witness interference are too general. At the very least, there should have been annexed to the Affidavit, affidavits to the witnesses alleged to have been threatened and Occurrence Book numbers or any report made to the police to give the allegation a level of certainty.

18. As held in the case of Panju v Republic [1973] EA 284, anything short of that would basically be calling this Court to speculate.

19. The Prosecution has not established that the Accused Persons interfered or are likely to interfere with the witnesses.

Flight Risk 20. It was deponed that the accused persons evaded arrest on a number of occasions. This was not rebutted by the Accused Persons’ Counsels.

21. Looking at the probation reports for the accused persons they indicate that the 1st accused person escaped to Nairobi, Mwingi and there were plans to travel to Qatar. They had to employ trickery to him to go back and he was arrested in Keroka. He is deemed to be a flight risk. This was however not specifically deponed to by the investigating officer in his affidavit.

22. The 2nd Accused Person’s report reads that his family was not at home. It is not known where they are. However, the Accused Persons’s family had relatives who would give them a title deed to act as security for the Accused Person.

23. The 3rd Accused Person’s report was relatively fairer. It is indicated that his wife was willing to receive him at home and there was an individual willing to act as surety. The area administration indicated that the tension in the area had subsided.

24. As for the 4th Accused Person, the report states that he has a fixed abode. The Area Administration stated that the tension in the community had subsided.

25. I find that the Prosecution has not established that the Accused Persons are a flight circumstances.

Safety and Security of the Accused Persons 26. Sgt. Afred Ruto deponed that the lives of the Accused Persons were in great danger from the public. Looking at the Probation Reports, they indicate that the lives of the 1st and 2nd Accused Persons’ lives are in great danger.

27. Mr. Magara for the 1st, 2nd and 4th Accused Persons submitted that the Prosecution did not substantiate that the lives of the Accused Persons were in danger.

28. Mr. Omwengo did not speak to this.

29. The main objective of bail is to secure the Accused Person’s Court attendance. I am aware that in the cases of Republic v James Lesirongo Soito [2022] eLKR and Republic v Chebet (Criminal Case 003 of 2022) [2022] KEHC 599 (KLR) (30 May 2022) (Ruling) , the Court held that the state has a responsibility to ensure the safety and security of its citizens including the accused.

30. However, I also note that the Accused Persons all appear to be from the same place as the Deceased. I also note that all the Accused Persons have a familial relationship with the Deceased.

31. It is, therefore, very likely that the lives of the Accused Persons may be in danger from the community. However, it is not immediately clear to the Court as to why the tension would have subsided for some of the Accused Persons and not the others. I say this with a lot of caution.

32. In the end, considering the material placed before this court and the gravity of the offence that the accused persons have been charged with, I hold as follows:1. The Prosecution has not established compelling reasons to deny all the accused person bond/bail.2. Each accused is admitted to bond of Kshs 500,000/= WSLS.3. Each Accused persons shall personally Report to Sub-County Director of Criminal Investigations on the 2nd and 4th Monday of each month WEF from January 2024 until conclusion of the trial or until the Court varies these orders.4. The accused persons shall not interfere, or make any contact by themselves or through other people, whether directly or indirectly with any witness or witnesses or victims herein during the trial.5. Hearing on 27. 5.24. Remanded in custody.

Dated, Delivered and Signed at Kisii this 5th day of December 2023. TERESA ODERAJUDGEIn the presence of:Mr. Ochengo for the StateMr. Mariita and Magara for the 1st, 2nd and 4th AccusedMariita: I witness statements.Ochengo: I have the file with me. They can pick the statements form our office on any day.ORDER: Witness statements be supplied to defence within 2 weeks’ form today.T.A ODERAJUDGE5. 12. 23