[2023] KEHC 25322 (KLR)

Republic v Mutai (Criminal Case E016 of 2023) [2023] KEHC 25322 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25322 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E016 of 2023

JK Sergon, J

November 14, 2023

Between

Republic

Prosecutor

and

Dominic Kiplangat Mutai

Accused

Ruling

1. Dominic Kiplangat Mutai the accused herein was charged with the information of Murder Contrary to section 203 as read with 204 of the Penal Code. Particulars of the information dated October 16, 2023, are that on September 27, 2023 at Monoru Village, Roret Location, in Bureti Sub - County within Kericho County the accused murdered Triza Kendi Mwenda aka Triza Kendi Cheptoo Mutai.

2. The accused person according to court records was arrested on September 28, 2023 and arraigned in court on October 2, 2023. The accused person was subjected to a mental assessment on October 4, 2023 and was found to be of sound mind and fit to stand trial.

3. On October 19, 2023, the accused person took plea and pleaded not guilty to the charge of murder.

4. Mr Waweru Learned Counsel for the accused person made an oral application to have the accused released on bail. The prosecution did not oppose the application for bail.

5. The court directed that a pre-bail report be prepared and filed by the county probation officer.

6. The county probation officer filed a pre-bail report, in the said report, it is noted that the accused is willing to abide by the bond terms and conditions, would not jeopardize justice or interfere with witnesses. The accused has a fixed abode and in the probation officer’s assessment was not a flight risk.

7. The accused enjoys a quality relationship with his family, the accused person’s immediate family members are willing and ready to post the requisite bond to secure his release.

8. The family of the deceased are not opposed to his release on bail, they stated that there is no hostility or grudge towards the accused herein.

9. The local administration stated that the accused has no history of criminality, has strong community ties and therefore were not opposed to the accused’s release on bond.

10. Therefore the probation officer based on the findings of the social inquiry and the assessment of the home environment, found no compelling reasons to withhold the accused’s release on bail and therefore recommended that this court grant the accused bail.

11. The right to bail is both constitutional and statutory, the accused person has a constitutional right to be released on reasonable bail terms unless there is a compelling reason not to grant the accused person bail.

12. The right to bail is entrenched in article 49 (1) (h) of the Constitution which states as follows:- "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."

13. As a constitutional right, its enjoyment can only be limited if exceptional circumstances are established. In interpreting the right to bail, section 123A of the Criminal Procedure Code cap 75 Laws of Kenya sets the parameters for the grant of the right to bail as follows:“ (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."

14. I have taken cognizance of the fact that the prosecution was not opposed to the application for bail and/or did not place before this court any compelling reason (s) to enable me deny the accused his constitutional and statutory right to bail and further that the pre-bail report is favourable. Accordingly, I hereby order that the Accused be admitted to bail/bond pending trial. The Accused Namely:- Dominic Kiplangat Mutai should be released from custody upon signing a bond of Kshs.200,000/= with one surety of like sum.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 14TH DAY OF NOVEMBER, 2023. .…………….J. K. SERGONJUDGE