[2023] KEHC 26035 (KLR)

Republic v Mohamed & 4 others (Criminal Case E002 of 2023) [2023] KEHC 26035 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26035 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Case E002 of 2023

JN Onyiego, J

November 10, 2023

Between

Republic

Prosecutor

and

Abdirizak Abdow Mohamed

1st Accused

Mahat Ibrahim Tache

2nd Accused

Mohamed Issack Ali (Alias Kadir)

3rd Accused

Abdullahi Bulle Abdow

4th Accused

Adan Mursal Hassan (Alias Geney)

5th Accused

Ruling

1. This ruling is in reference to an application by the 5th accused person, Adan Mursal Hassan who together with four others were jointly charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the offence were that Abdizizak Abdow Mohamed (alias Minai), Mahat Ibrahim Tache, Mohamed Issack Ali (alias Kadir), Abdullahi Bulee Abdow and Adan Mursal Hassan on 05. 01. 2023 jointly at Mandera Township, in Mandera East Sub County within Mandera County unlawfully murdered Farah Ibrahim Salat.

2. The background of this matter is that the deceased herein was allegedly murdered by the five accused persons on 5th January 2023. However, the 1st, 2nd, 3rd and 4th accused persons were apprehended and charged before court without the 5th accused who allegedly fled from the jurisdiction of the court to Somalia until 23rd August 2023 when he was arrested upon execution of a warrant of arrest.

3. Having been arraigned before court for plea taking, the applicant through his advocate, Mr. Njagi urged this court to admit him to reasonable bond/bail pending the hearing and determination of the case. That this Honourable Court do make any other order it deems fit in the circumstances.

4. Mr. Kihara, counsel for the respondent opposed the said application citing grounds that; despite the probation’s report being favourable, the same did not take into consideration the views of the victim’s family. Counsel contended that the accused person is a flight risk having fled to Somalia to avoid arrest upon commission of the offence. That in the event he is admitted to bail/bond he is not likely to turn up for the hearing. Prosecution relied on the affidavit sworn by the investigating officer urging that the applicant is a flight risk.

5. I have considered the application herein and the response thereof. The only issue for determination is whether this court should exercise its jurisdiction to admit the applicant to bail/ bond. Article 49(1)(h) of the Constitutionof Kenya, 2010 provides that: -“An arrested 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”.

6. The Constitution however does not define the term “compelling reasons”. However, a compelling argument would be something that is in accordance with the fact or some reality. In the case of Republic v Joktan Mayende & 4others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term “compelling reasons” as follows: -“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.”

7. In the case of Republic v Francis Kimathi[2017] eKLR, the court held that:“… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution.

8. The Bail and Bond Policy Guidelines provides thus, in regard to compelling reasons:(a)The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit, or abet the commission of, a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody.”

9. It is trite that an accused person is presumed innocent until proven guilty. To that extent, an accused person’s liberty should not be deprived off over flimsy reasons. The deprivation should be as a result of cogent reasons and in accordance to the principles known in law.

10. In the case of Republic v Dwight Sagaray & 4 others (2013) eKLR when faced by a similar scenario the court had this to state:“For the prosecution to succeed in persuading the court on this criteria (of interference), 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…, at least some facts must be placed before court otherwise it is asking the court to speculate.”

11. In the instant case, the prosecution submitted that despite the probation’s report being favourable, the same did not take into consideration the views of the victim’s family and further, the accused person is a flight risk. That after the commission of the offence, the applicant disappeared to Somalia to escape arrest. That it took the effort of the police reservist to arrest him hence if released on bail he is likely to abscond. Unfortunately, the applicant did not challenge that allegation.

12. Although an accused person is deemed to be innocent until proved guilty, his interests are not superior to those of the victim. Those interests must be balanced with those of the victim. Given his past conduct by disappearing from this court’s jurisdiction and having been arrested after a long period of hide and seek, I do not find him suitable to be released on bail. In any event, bail is at the discretion of the court and not absolute.

13. From the foregoing, it is my finding that this is not a suitable case in which I should exercise my discretion in admitting the applicant to bail/bond terms as he is a flight risk. Accordingly, am inclined to direct that the applicant shall remain in custody during the pendency of the proceedings herein unless the circumstances herein change.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF NOVEMBER 2023J.N. ONYIEGOJUDGE