[2023] KEHC 26667 (KLR)

Republic v Ngetich & another (Criminal Case E021 of 2023) [2023] KEHC 26667 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26667 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E021 of 2023

JK Sergon, J

December 13, 2023

Between

Republic

Prosecutor

and

Leonard Kiprono Ngetich

1st Accused

Geofrey Kirui Kiplangat

2nd Accused

Ruling

1. Leonard Kiprono Ngetich, Geoffrey Kirui Kiplangat the accused persons herein were charged with the information of Murder Contrary to Section 203 as read with 204 of the Penal Code. Particulars of the information dated 16th November, 2023, are that on 22nd October, 2023 at Cheloskei Village, Kebeneti Location, in Soin/Sigowet Sub - County within Kericho County, jointly with others not before court murdered Daniel Kipngetich Chepkwony.

2. The accused persons according to court records was arrested and arraigned in court on 16th November, 2023. The accused persons were subjected to a mental assessment on 14th November, 2023 and were found to be of sound mind and fit to stand trial.

3. On 28th November, 2023, both accused persons took plea and pleaded not guilty to the charge of murder.

4. As per the court records, Ms. Chebet Learned Counsel for the accused persons made an oral application to have the accused persons released on reasonable bond terms. The court directed that a pre-bail report be prepared and filed by the county probation officer.

5. The county probation officer filed a pre-bail report on behalf of Leonard Kiprono Ngetich, 1st accused herein, in the said report, it is noted that the 1st accused has no prior criminal record and has strong ties with family members and the community. The accused is the primary breadwinner. His family members and relatives are willing to deposit the necessary requisite security for his release on bond. They will ensure he attends court as and when required. The family members and relatives hold the opinion that the accused is not a threat to them and he will not jeopardize justice while on bond.

6. Prior to the demise of the accused’s father, there existed a misunderstanding in the family regarding how the father was disposing of the family land. They pray to court to grant the accused a favourable bond terms considering the family’s economic ability. The family members feel that there is no hostility to be directed to the accused while on bond.

7. The deceased is the father to the 1st accused. The family holds no grudge against the offender. They are willing to assist him secure bond. Led by the accused’s mother and siblings, the relatives shared the same sentiments.

8. The accused person has a fixed abode. The family members said that the accused will continue living with his family in the village. They do not view him as a flight risk. The accused is willing to pursue justice even when on bond. His interest is for the court to determine the case and that justice is served. He will not threaten the witnesses.

9. The village elder and the area chief described the accused as a person well known to them. Following the incident, the community is sceptical to comment regarding the release of the accused on bond. They leave the matter to the opinion of the accused and deceased’s family members and relatives.

10. The probation officer noted that the community members are not opposed to the release of the accused on bond and the community environment is not hostile for the accused’s release on bond. Pursuant to the finding of the social inquiry and assessment of the home environment the probation officer recommended that the 1st accused be granted reasonable bond terms and be allowed to pursue justice while out of remand custody.

11. The county probation officer filed a pre-bail report on behalf of Geoffrey Kirui Langat, 2nd accused herein, in the said report, it is noted that the 2nd accused has no prior criminal record and has strong ties with family members and the community. The accused is the sole provider in his family. His family members and relatives are willing to deposit the necessary requisite security for his release on bond. They will ensure he attends court as and when required. The family members and relatives hold the opinion that the accused is not a threat to them and he will not jeopardize justice while on bond.

12. Prior to the demise of the accused’s father, there existed a misunderstanding in the family regarding how the father was disposing of the family land. They pray to court to grant the accused a favourable bond terms considering the family’s economic ability. The family members feel that there is no hostility to be directed to the accused while on bond.

13. The deceased is the father to the 2nd accused. The family holds no grudge against the offender. They are willing to assist him secure bond. Led by the accused’s mother and siblings, the relatives shared the same sentiments.

14. The accused person has a fixed abode. The family members said that the accused will continue living with his family in the village. They do not view him as a flight risk. The accused is willing to pursue justice even when on bond. His interest is for the court to determine the case and that justice is served. He will not threaten the witnesses.

15. The village elder and the area chief described the accused as a person well known to them. Following the incident, the community is sceptical to comment regarding the release of the accused on bond. They leave the matter to the opinion of the accused and deceased’s family members and relatives.

16. The probation officer noted that the community members are not opposed to the release of the accused on bond and the community environment is not hostile for the accused’s release on bond. Pursuant to the finding of the social inquiry and assessment of the home environment the probation officer recommended that the 2nd accused be granted reasonable bond terms and be allowed to pursue justice while out of remand custody.

17. 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.

18. 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."

19. 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."

20. In Republic v John Kahindi Karisa & 2 others [2010] eKLR the court observed as follows; "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." The Constitution does not define the term “compelling reasons”. However, there are several High Court cases that have deconstructed the phrase “compelling reasons” in Republic v Joktan Mayende & 4 Others 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.” 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, a 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.”

21. In the instant matter, 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 persons the constitutional and statutory right to bail and further that the pre-bail reports are favourable. Accordingly, I grant both accused persons a bond of Kshs.200,000/= with one surety of similar amount each.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. ........................J. K. SERGONJUDGE