[2025] KEHC 113 (KLR)

Republic v Musa & 4 others (Criminal Case E055 of 2024) [2025] KEHC 113 (KLR) (14 January 2025) (Ruling)

Neutral citation: [2025] KEHC 113 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case E055 of 2024

AC Bett, J

January 14, 2025

Between

Republic

Prosecutor

and

Moses Aliaka Musa

1st Accused

John Lumbasi Lutta

2nd Accused

Ronald Ndunde Otuoli

3rd Accused

Beneah Omusula Omutanyi

4th Accused

Wyclife Edwin Wekhoba alias Edwin Amulabu

5th Accused

Ruling

1. The Accused persons, Moses Aliaka Musa, John Lumbasi Lutta, Ronald Ndunde Otuoli, Beneah Omusula Omutanyi and Wyclife Edwin Wekhoba alias Edwin Amulabu have been jointly charged with three counts of murder contrary to Section 203 as read with Section 204 of the Penal Code, one count of grievous harm contrary to Section 234 of the Penal Code, and the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code.

2. The particulars of Count 1 are that on the 27th day of October, 2024 at Eshikulusi village, in Emuleche Sub-Location in Butere Sub-County within Kakamega County the Accused persons jointly with others not before this court, murdered one Govern Namayi Wesonga.

3. The particulars of Count 2 are that on the 27th day of October, 2024 at Eshikulusi village, in Emuleche Sub-Location in Butere Sub-County within Kakamega County the Accused persons jointly with others not before this court, murdered one James Namayi Omukangu.

4. The particulars of Count 3 are that on the 27th day of October, 2024 at Eshikulusi village, in Emuleche Sub-Location in Butere Sub-County within Kakamega County the Accused persons jointly with others not before this court, murdered one Benjamin Ndakale Makale.

5. The particulars of Count 4 are that on the 27th day of October, 2024 at Eshikulusi village, in Emuleche Sub-Location in Butere Sub-County within Kakamega County the Accused persons jointly with others not before this court, unlawfully did grievous harm to one Reuben Wesonga Namayi.

6. The particulars of Count 5 are that on the 27th day of October, 2024 at Eshikulusi village, in Emuleche Sub-Location in Butere Sub-County within Kakamega County the Accused persons jointly with others not before this court, willfully and unlawfully assaulted one Jackson Otundo Namayi by occasioning him bodily harm.

7. Each accused person, except the 3rd Accused who is to undergo further mental assessment, pleaded not guilty to all the charges facing them. The prosecution, relying on affidavit sworn by the investigating officer objected to the release of the Accused persons on bond and urged the court to call for a pre-bail report before making a decision on whether to grant the Accused persons bond or not. All the pre-bail reports were filed except for the 2nd Accused’s report. Since the 3rd Accused is yet to take plea, I will not deal with his application for now.

Pre-bail Reports 8. The pre-bail report in respect to the 1st Accused indicated that the family of the 1st Accused is willing to bail the accused. It indicated that the community would be comfortable with his presence should the court grant him bail. The report specified that the victims of the offences have decided to leave the matter in the hands of the state to pursue justice hoping for a fair and just outcome. The report recommended that the court should practice its discretion on whether or not to grant bond to the 1st Accused.

9. The pre-bail report on the 4th Accused states that nobody is willing to stand surety for the 4th Accused. It indicated that the 4th Accused has had a history of criminal activities and has an on-going criminal case against him. The report stated that the response from the local community towards the 4th accused has been overwhelmingly hostile and accusatory since he is considered a repeat offender. It indicated that even the local Chief is in strong opposition of granting the 4th Accused bond citing the ongoing hostility and potential for violence. The report intimated that the victims and the families emphasized that the 4th Accused has been involved in other unresolved cases thus casting doubt on his character and ability to comply with legal expectations. The families have further prayed that the 4th Accused person’s bond application be denied in order to uphold integrity of the judicial process and to prevent any further harm or misconduct. The report recommended that bond should be denied for the 4th Accused person due to the severity of charges, community hostility and lack of available sureties.

10. The pre-bail report on the 5th Accused indicated that the family of the 5th Accused is willing to bail him. The report outlined that the 5th Accused has deep ties with the community and that the community would be comfortable with his presence should the court grant him bail. The report further suggested that the victims and their families are troubled by the seriousness of the murder charge and that they have placed their trust in the legal system for a fair and just outcome. The report recommends that the court should consider stringent bond terms that include close supervision such as regular reporting to the Probation Officer, curfew restrictions and participation in rehabilitative programs.

Analysis 11. Article 49(1)(h) of the Constitution 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.”

12. The Bail and Bond Policy Guidelines, Paragraph 3. 1 (b) provides that:-“Every accused person has the right to liberty. As a general rule, therefore, every accused person should not be detained, but should be released subject to his/her guarantee to appear for trial. Pretrial detention should therefore be a measure of last resort, and the criminal justice institutions should make every reasonable effort to avoid pretrial detention.”

13. The court in the case of Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that:-“The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released."

14. Accordingly, Section 123A of the Criminal Procedure Code stipulates that:“1. Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—a.The nature or 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 fulfilment of obligations under previous grants of bail; and;d.The strength of the evidence of his having committed the offence.2. A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—a.Has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;b.Should be kept in custody for his own protection.”

15. In the case of Republic v Danson Mgunya & another (2010) eKLR, the court held that:-“When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others, the following: -i.The gravity of the punishment in the event of convictionii.The previous criminal record of the accused, if anyiii.The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him…”

16. Considering the relevant circumstances this court should consider when reaching a decision on whether to grant bail or bond, it is evident that the offences that the accused persons herein are being charged with are serious offences and it is therefore imperative that this court exercises due caution in granting bond or setting the bond terms for the Accused persons.

17. In the Affidavit to oppose bond sworn by the Investigating Officer on 21st November 2024, the Officer avers that the Accused persons are a flight risk since they took to hiding after committing the offences. He further states that there is a likelihood of witness interference if the Accused persons are released on bond since the Accused persons and the witnesses are from the same locality. The Investigating Officer avers that the 4th Accused has previously committed other offences which are still pending in court. He contends that if there are other suspects who are still at large, if the Accused persons are released, they might regroup with their members thus interfering with the ongoing police operations to arrest the suspects who are still at large. The Investigating Officer further posits that the safety of the Accused persons cannot be guaranteed if they are released on bond since the community is hostile towards them.

18. I Have considered the Affidavit to oppose bond, the pre-bail report and recommendations, and the relevant legal provisions.

19. I find that there is no evidence that has been tendered to support investigation Officer’s contention that the Accused persons are a flight risk since no difficulty in finding the Accused persons was proven. Further, there is no evidence that the 1st and 5th Accused persons are members of a criminal gang. The Prosecution did not tender any material before the court to buttress their claims. The allegations by the Chief alone, is insufficient to warrant denial of bond. See Republic -v- Dwight Sagaray & 4 others [2013] KEHC 3824 (KLR).

20. From the pre-bail reports, it is clear that the community is hostile and unreceptive towards the 4th Accused person. The 4th Accused person is considered a habitual offender because there are other cases against him .He is regarded as a nuisance in the community. According to the pre-bail report, nobody is willing to stand surety for the 4th Accused person since he has a strained relationship with his family resulting from his propensity for crime and the gravity of the charges facing him. The report further asserts that there is a fear of retaliatory violence if the said Accused person is released on bond.

21. After analysing the Investigating Officer’s Affidavit and the pre-bail report, it is evident that there are cogent reasons to believe that the 4th Accused could be a leader of some criminal gang that has been terrorizing people within the environs of Butere and Mumias. It is affirmed that the 4th Accused has two pending criminal matters being Kakamega HCCR No E035 of 2024 in which he is charged with murder, and Butere SPM Cr. Case Number E661 of 2024 in which he is charged with robbery with violence.

22. I am alive to the fact that the Accused is entitled to his constitutional right to be presumed innocent until proven guilty. However, the fact that the 4th Accused is facing his third criminal charges of committing a felony means that there are sufficient grounds for the State to believe that he committed the offences. Since the 4th Accused did not refute the prosecution’s assertion that he is a habitual offender, this court is persuaded that it is possible that the assertions are true and that the Accused is likely to commit another offence if released on bond or that the public may take the law into their own hands in response to the release.

23. Although bond is a constitutional right, it is not an absolute right. Where there are compelling circumstances, the court may deny an accused person bond. Compelling reasons were analysed in the case of Republic -vs- Danfornd Kabage Mwangi [2016] eKLR where the court stated:-“Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned.”

24. In deciding whether or not to grant bail, the court must balance the constitutional rights of the individual against public interest. In doing so, the court needs to be careful to ensure that the Accused person’s right to bail is not fettered unnecessarily. Each case depends on its peculiar circumstances. In the case of Republic -v- Evans Juma Wanjala [2021] KEHC 1768 (KLR) Nyakundi J. denied the Accused bail on the ground that he had been linked to several murders.

25. Having said that, I am persuaded that there exist compelling circumstances to deny the 4th Accused bail.

26. For the 1st and 5th Accused persons, it is clear from the pre-trial report that they are still acceptable in the society, there are willing sureties for them and the pre-bail recommendations are favourable for their release on bond. It is however important that the seriousness of the charges against these Accused persons be considered in determining their bond terms.

Orders 27. In view of the above, I hereby make the following orders:-a)The bond application for the 4th Accused is hereby declined.b)The 1st and 5th Accused persons are each granted bond of Kshs. 800,000/= with one surety of a similar amount with an alternative cash bail of Kshs. 400,00/=.c)The 1st and 5th Accused persons shall attend court whenever required to do so.d)Upon failure to attend court, the 1st and 5th Accused persons will be liable to have their bonds cancelled and they will proceed with their case while in custody.e)The bond application with respect to the 2nd Accused will await the pre -bail report while that of the 3rd Accused will be determined upon his taking the plea.

28. Those are the orders of the court.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 14TH DAY OF JANUARY 2025. A. C. BETTJUDGEIn the presence of:Ms. Chala for the ProsecutionAccused persons presentMr. Munyendo for the 1st, 2nd, 3rd and 5th AccusedMr. Nyaberi for the 4th AccusedCourt Assistant: Polycap