[2023] KEHC 23986 (KLR)

Republic v Ogao aka Julius Ombogo (Criminal Case E028 of 2023) [2023] KEHC 23986 (KLR) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23986 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E028 of 2023

HM Nyaga, J

October 24, 2023

Between

Republic

Prosecutor

and

Julius Mogoi Ogao A.K.A Julius Ombogo

Accused

Ruling

1. The accused is charged with the offence of Murder, contrary to section 203 as read with section 204 of the Penal Code. He pleaded not guilty.

2. The state has objected to the accused person being released on bond or bail.

3. Through an affidavit sworn on 31st July,2023, the investigating officer has deponed that; In the course of investigations, several witnesses were interviewed and forensic analysis done, and household items of the deceased were recovered from the accused person’s relatives houses within Kisii County where the accused had taken them immediately after the incident.

After commission of the offence, the accused person left Nakuru and moved to different places, while driving the deceased’s motor vehicle within Kisii County, before dumping the same in Transmara West, Narok County.

There is a high likelihood of the accused interfering and intimidating the key prosecution witnesses if released on bond.

Some witnesses who are close relatives and others well known to the accused person have expressed fear that the accused might harm them if released owing to bad character and criminal record and that they are also averse to being put under witness protection measures because it will mean separation from their families and source of livelihood.

The murder of the deceased elicited public outrage and therefore the public is hostile and not ready to receive the accused person hence for his own safety he should remain in custody.

There is higher likelihood and incentive for the accused to abscond considering the charge facing him.

4. Samson Manain Onderi one of the witnesses and a neighbor of the accused in this matter swore an affidavit on19th September,2023 whereby he depones that: - He interacted with the accused severally around the time of the incident and was thus interviewed and he recorded his statement.

The previous character of the accused person whereby he assaulted a neighbor with a machete and also threatened to slash his own mother renders him a threat if released before determination of this case

He fears that the accused might end up injuring him if released before determination of the case as he is aware that he is a witness in this case.

5. Through his advocate, the accused has submitted that no compelling reasons have been given by the prosecution to warrant a denial of bond or bail. That mere knowledge between the accused and witnesses ought not to be a bar to the grant of bail. It was further submitted that the averment of threat is hearsay as there is no proof thereof. The accused asked the court to grant him conditional bail, to prevent contact with any of the prosecution witness.

6. I had asked for a pre-bail report to be done but it was not availed at the time of writing this ruling.

7. Article 49 of the Constitution provides for the right of an arrested person. Article 49(1) (h) of the Constitution specifically states that an accused person is entitled;“To be released on bond or bail on reasonable conditions pending a charge at a trial unless there are compelling reasons not to be released.”The Constitution does not define what constitutes “compelling reasons’’. However, Section 123A of the Criminal Procedure Code provides thus:“(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 offences;(b)the character, antecedents, associations and community ties of the accused persons;(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.”

8. Also, in the well-known case of Republic vs Danson Mugunya [2010] eKLR the court cited some of the grounds to be considered in whether to grant bond or bail to an accused. These include:a.The nature of charge or offence and the punishment to be meted out if accused is convicted.b.The strength of the prosecution case.c.Character and antecedents of the accused.d.The need to protect the victim or victims of the crime.e.Likelihood of interfering with witnesses.f.The relationship between the accused and potential witnesses.g.Whether the accused is a flight risk or not.h.Protections of the accused person.

9. This list is not exhaustive and each case has to be looked at on its own set of circumstances. It is for the State to provide these compelling reasons and not for the accused to disprove them.

10. In Republic vs Robert Zippor Nzilu [2018] eKLR the court held that compelling reasons are dependent on the circumstances of each case and these circumstances are to be considered cumulatively and not in isolation. As regards the severity of an offence, the court held in this case that the mere fact that the offence with which an accused is charged carries a severe sentence is not necessarily a reason for denial of bail. The court reiterated that the burden of proof lies on the prosecution to show that there are compelling reasons to deny an accused person bail/bond.

11. In Republic vs Danford Kabage Mwangi [2016] eKLR the High Court held that the grounds of denial of a bail application must be proved by the prosecution to the satisfaction of the court. The court stressed that mere allegations or possibility is not enough. The court also held that bail cannot be denied simply because an accused has been charged with a serious offence but the seriousness of the offence can be taken into consideration as a factor in determining if one of the grounds for refusing bail exists.

12. In Republic vs Joseph Wambura Mutunga (2010) eKLR the High Court further expounded on the issue of what compelling reasons are. The court held that “compelling reasons” and “in the interests of justice” would basically amount to the same thing. The court did refer to a decision in the Supreme Court of Malawi namely Fredrick Mwiha vs Republic Misca On Appeal No. 25 Of 2000. In the said case the Supreme Court of Malawi tackled the issue of granting or denying an accused bond/bail. The Judges held as follows:“To my mind the phrase “in the interest of justice” can readily be replaced with the word “compelling reasons” as used in our constitution. I say so because it is a compelling reason to ensure that the court always act in the interest of justice. Therefore, should there be a compelling reason for depriving an arrested person bail pending trial. It should automatically follow that such deprivation was in the interest of justice”.

13. I don’t think that I need to add anything to the above.

14. The main contention by the Prosecution is that the Accused person will interfere with witnesses. The Prosecution further argued that the murder of the deceased raised public outrage and therefore the public is hostile and not ready to receive the accused person. Lastly, it was argued that due to the gravity of the offence the accused person is likely to abscond.

15. With respect to likelihood of the accused interfering with witnesses, the prosecution submitted that some of the witnesses are close relatives while others are well known to the accused person. One of the accused’s neighbors and witness in this case, Samson Manain, has expressed fear for his life if accused is released on bond.

16. In Republic vs Dwight Sagaray & 4 Others [2013] eKLR the court held that;“For the prosecution to succeed in persuading the court on this criteria (interference with witnesses) 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; close familial relationship between the accused and witnesses among others.”

17. The bail and bond policy formulated by the Judiciary gives guidelines on issues relating to threats of witnesses. At page 17 it states as follows;“Where there is a likelihood that the accused will interfere with prosecution witnesses if released on bail or bond, he or she may be denied bail or bond. However, bail or bond will only be denied if-I. There is strong evidence of the likelihood of interfering with prosecution witnesses, which is not rebutted andII. The court cannot impose conditions to the bail or bond to prevent such interference.”

18. When it comes to issues of threats, the court may not be dealing with tangible evidence as such. The question is whether the accused could probably inflict genuine fear and anxiety in the potential prosecution witnesses. If the answer is in the affirmative, then that would constitute a compelling ground for denial of bail.

19. Now, it is said that the accused person hails from the same locality as the potential witnesses. It was also averred that several exhibits belonging to the deceased were recovered from his relatives houses within Kisii County where the accused had allegedly taken them immediately after the incident. In my view that close relation by itself points to a situation where the accused can easily access his relatives and neighbors.

20. It is not possible to keep a 24 hour watch over the witnesses and the accused. In my view that closeness provides a ground to hold that there is a likelihood of interference. It is better to be safe rather than sorry.

21. On the issue of the accused person’s safety, I don’t think that the accused is in any danger. He was not threatened by anyone while he was being sought, for almost a week. I don’t think that sufficient grounds have been laid on this issue. In any case, the state has the required legal machinery to protect its citizens. In Republic vs Stephen Kinini Wang’ondu & 4 others [2021] eKLR the court stated as follows in regards to security of the Accused person;“The case of R v. Lucy Njeri Waweru & 3 others 2013 eKLR was cited by the defence where the court observed that tempers and emotions cool with time. The prosecution also relied on the same case to state that the public may out of sympathy seek to revenge on behalf of the victims. In this regard, I am of the considered view that the state has the required legal machinery to protect its citizens. Any person taking the law into their hands must face the full force of the law. The rights of the accused persons to be released on bail will not be restricted for fear of hostility or revenge by the public.”

22. I associate myself with the sentiments of the court in the above case.

23. As regards the accused being a flight risk, the court has to look at the circumstances leading to the arrest of the accused person. It is alleged that he fled from Nakuru to Kisii, then to Narok Counties. The alleged offence was committed on the night of 17th to 18th June 2023. The accused was arrested on 26th June 2023, after news of the alleged incident were splashed all over the media. It is important to point out that the media coverage is not relevant in considering whether to grant bond or not.

24. To me, the fact that the accused was on the run for those days is a clear indication that he has the propensity to abscond. Nevertheless, that may be cured if stringent bond terms are given and if there are no other factors in play that work against him.

25. The court has to be careful not to curtail rights of the accused person unreasonably and bail or bond should not be refused merely as a punishment as this would conflict with the presumption of innocence.

26. As I have already stated, the court has to ensure that the interests of justice are served. That is easier to state than to actually put in place in a practical manner especially where there are totally conflicting arguments from each side, as in this case.

27. Article 50 (2) (a) of the Constitution provides that every accused person has the right to a fair trial which includes the right to be presumed innocent until the contrary is proved. In addition, Article 27(1) as read with article 27(4) and 27(5) of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. The State and persons other than the State are forbidden from discriminating against others on any ground either directly or indirectly.

28. On this note I rely on the case of Republic vs Robert Zippor Nzilu (Supra) where the court stated that;“The cornerstone of the justice system is that no one will be punished without the benefit of due process. Incarceration before trial when the outcome of the case is yet to be determined cuts against this principle.”

29. For the foregoing reasons, I find that compelling reasons have been given to warrant the denial of bond for now. I therefore hold that the accused shall remain in custody until all the closely related witnesses and neighbors have testified. The accused may renew his application after that has been done.

30. To avoid undue prejudice to the accused, the case shall be given clear hearing dates in the next term.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 24THDAY OF OCTOBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A JenifferMurunga for stateMr. Ayuka for victim’s familyMrs. Morande for accusedAccused present