[2023] KEHC 26939 (KLR)

Republic v Odour (Criminal Case E045 of 2023) [2023] KEHC 26939 (KLR) (Crim) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26939 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E045 of 2023

LN Mutende, J

December 14, 2023

Between

Republic

Prosecutor

and

Alice Akinyi Odour

Accused

Ruling

1. Alice Akinyi Odour, the Accused/Applicant was arraigned in court following allegations of having committed the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the offence being that on 24th May,2023, at Mathare 4B Area in Starehe Sub-County within Nairobi County, he murdered Alfred Odhiambo Ongonga alias Otisi.

2. Based on an accused person’s constitutional rights, as provided by article 49(1) of the Constitution, the accused seeks to be released on bond pending trial. The application is supported by an affidavit deposed by the applicant where she avers that she is a mother of five children, three who are below eighteen (18) years old. That she is the sole bread winner of the family and it is in the best interest of the her children that she be released on bond.

3. The application is opposed by the state/respondent. The basis of the objection being the content of an affidavit sworn by No.86994 PC Allan Ochieno, the Investigating Officer, who deposes that prior to the incident the deceased and accused had been married for twenty-two (22) years. That the accused did not qualify to be admitted to bail because there is a likelihood of the accused interfering with prosecution witnesses who are children, her two(2) children who were eye witnesses, and a neighbour’s child. That the accused attempted to flee the scene before the police arrived, but was restrained by a neighbour who escorted her to Mathare Police Station. That the accused and deceased lived in a rental house hence she has no fixed place of aboard.

4. I have considered rival submissions, affidavits, alongside authorities cited. An accused person should not be deprived of liberty by being subjected to pre-trial detention. However, on the part of the prosecution/ State, its interest is to ensure the person indicted attends trial and in so doing may call for the individual being remanded in custody for the matter to proceed to conclusion. For that reason, in determining the question of bail/bond, the court must balance between the rights of the accused/victims and justice.

5. According to article 49(1)(h) of the Constitution, an accused has a right of being released on bond or bail but this is not absolute as it may be limited by some circumstances. The provision of law enacts that:An arrested person has the right(h)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 exception to the right to bail is enacted by Statute. section 123 A of the Criminal Procedure Code provides 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 fulfillment 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.

7. And, the Kenya Judiciary Bail and Bond Policy Guidelines which provides that:“(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. “

8. The obligation of demonstrating existence of compelling reasons lie with the one who asserts, in the instant case the State. The definition of “Compelling reasons” is omitted in the Constitution. However, in the case of Republic vs. Joktan Mayende & 4 others(2012)eklr, the court defined the term compelling reasons thus:“…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.”

9. Reasons given requiring the accused to be denied bail should therefore not be based on mere allegations. These should result into the conclusion being truthful and justifiable. In that regard, compelling reasons justifying incarceration of an accused during trial should vary depending on circumstances of each case for facts of cases differ.

10. A charge of murder has serious consequences in the event of conviction that is why the most important consideration is whether an accused person will turn up for trial. Believable reasons must be given as to why bail should be denied. The State urges that the accused is a flight risk as deposed in the affidavit of the Investigating Officer. A perusal of the statement recorded by the witness who went to the scene upon hearing the accused screaming alluded to have held the hand of the accused and escorted her to the Police Station upon seeing the crowd gathering and also the victim who had a knife stuck on his head. The facts as captured do not suggest that the accused was fleeing from the scene. In this respect the State has not demonstrated that if granted bail the accused will flee and become a fugitive of justice.

11. Pursuant to the order of this court, the Probation Department carried out a social inquiry and filed a report herein dated 26th September, 2023. It was established that key witnesses herein are the accused person’s biological children such that if allowed to reunite with them it will ease the ability to interfere with them and jeopardize access to justice. Concern was expressed as the family of the deceased were likely to retaliate by harming the accused if released on bond. Similarly, the community is also opposed to the accused being released on bail as they are fearful of her security.

12. When there is evidence that is convincing that the accused may intimidate witnesses or interfere with them, then bail should be denied. In the Joktan Mayende case (Supra) the court gave various scenarios of interference with witnesses. The court stated that:“All that the law requires is that there is interference in the sense of influencing or compromising or inducing or terrifying or doing such other acts to a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. Interference with Witnesses covers a wide range; it can be immediately on commission of the offence, during investigations, at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons. The descriptors of the kind of acts which amount to interference with witnesses are varied and numerous but it is the court which decides in the circumstances of each case if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused…”

13. It has been demonstrated that the the children in question are minors. At such a tender age the children can easily be intimidated. This will undermine the integrity of justice. Secondly, there is need to protect the accused. If released on bond her security may be at stake.

14. The upshot of the above is that the State has put forward forceful and /or convincing reasons requiring the accused person being denied bail. Therefore, for now she is denied bail, until key witnesses testify. An application for review of bail may be made thereafter.

15. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 14THDAY OF DECEMBER, 2023. L. N. MUTENDEJUDGEIn the presence of:Mr. Ngetich for Accused/ ApplicantMs. Ogweno for ODPPCourt Assistant – Mutai/Kathomi