[2022] KEHC 9897 (KLR)

Republic v Onsando (Criminal Case 35 of 2020) [2022] KEHC 9897 (KLR) (Crim) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9897 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 35 of 2020

LN Mutende, J

July 12, 2022

Between

Republic

Prosecution

and

Dennis Orora Onsando

Accused

Ruling

1. Dennis Orora Onsando, the accused, was charged with the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code. He sought to be released on bail /bond pending trial, and the court granted him a cash bail of Kenya shillings Three Hundred Thousand (Ksh 300,000/-) or bond of Kenya shillings Three Hundred Thousand (Ksh 300,000/-) with one surety. In addition, some conditions were set as follows:Upon release the accused was required to report to Karen Police Station every fortnight; he was prohibited from going to Karen Plains Mystica Homes Estate or its environs, the place where the incident took place, until the case is concluded; he was not required to reside in the same area; he was warned against contacting, intimidating, threatening or approaching any potential witness whether by himself or through proxy.

2. An application for review of bail terms set was made on 12th October, 2020 and the court allowed the application by varying the bail terms. The accused was ordered to deposit cash bail of Kenya Shillings Fifty Thousand (Ksh 50,000/-) together with a bond of Kenya shillings Three Hundred Thousand (Ksh 300,000/-) with one surety.

3. The accused has brought a second application for review through a Notice of Motion dated 27th September, 2021 seeking orders that:The cash bail and the bond terms be separated and that the court orders either cash bail of Ksh 50,000/= or bond terms of Ksh 300,000/= with 1 surety.

4. The application is premised on grounds that: The nuclear family of the accused is impoverished and is unable to raise the bond terms issued by the court; his father is sickly and that the accused is the sole bread winner; and that it is in the interest of justice that bond terms ought to be reviewed in compliance with the spirit of the Constitution. The accused swore an affidavit in support of the application, where he reiterated what was stated in the grounds on the body of the application and prayed to the court to separate the cash bail and bond terms.

5. The prosecution did not file any affidavit in opposition of the application. But, Daniel Orenge, Counsel for the victim’s family deposed an affidavit in opposition to further variation of bail terms. He averred that the bond terms were reasonable and that bond terms for murder charges are quite high. That the accused who has ulterior motives is likely to abscond trial and he is also a flight risk. Further, that the court had already reduced the bond terms in exercise of the spirit of the Constitution. That no affidavit has been filed by the accused’s parents or his spouse to support his application for bond review. That the application is baseless and has been brought to waste court’s time.

6. The application was canvassed through oral submissions. Ms. Martha Waweru, learned Counsel for the accused submitted that there would be no prejudice with the accused being released on bond since the matter has proceeded to hearing and 3 witnesses have been heard. Mr Okeyo, learned Prosecution Counsel opposed the application and submitted that: the accused was charged with a capital offence and Ksh 300,000/= was reasonable; witnesses are likely to be threatened; the accused is known to the prosecution witnesses identified as D1-D6; the witnesses were friends and relatives to the deceased and the accused also made contact with them; all the witnesses have not testified and the prosecution undertakes to avail them before the accused can be released, and, that circumstances have not changed to warrant his release.

7. In a rejoinder, it was reiterated that the arguments raised in opposition are the same arguments that were raised earlier during the application for bond. That the threat has not been demonstrated and the narrative against the accused is not true.

8. I have considered the application, supporting affidavit, rival submissions for both the prosecution and defence and the report filed by the Probation Officer which established that the victim’s family is still opposed to the accused being released on bond while the accused’s family prays for lenient bond terms. The report confirms that the accused is married and has two children. One child is school going and the other who is two years old. The accused’s wife is a teacher.

9. The issue to be determined is whether terms of bond/ bail set should be reviewed. In the case of Republic vs. Diana Suleiman Said & Another [2014] eKLR Muriithi J was of the view that the court does not become functus officio on a first application for bond, that Section 123 of the Criminal Procedure Code (CPC) (as amended) following the Constitution of Kenya, 2010 makes bail available at all times.

10. In this case the accused has remained in remand custody despite the variation of the initial bond terms which is proof that he cannot find a surety. But, no affidavit was deposed by members of his family to suggest reasons why they could not assist the accused find a suitable surety or if there has been any attempt.

11. In the case of Harish Mawjee & Another vs. Republic [2020] eKLR, it was stated that:“… courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if found necessary. Secondly, bond terms should not be arbitrary, but the court must consider the relevant factors affecting issuance of bond including penalty of offence and the accused ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. Fourthly, an accused has a right to seek review of bond terms from trial court or high court or appeal.”

12. The court exercises this duty in furtherance of the provisions of Article 49(1) (h) of the Constitution which 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.

13. Although the court can grant and /or review bond terms at any stage of the proceedings further to the accused’s constitutional right under Article 49 of the Constitution, due regard should be given to the gravity of the offence and the accused’s right for review of bond terms must be balanced with any injustice or prejudice that would be suffered by the prosecution and/or the victim. The general principle in granting bail is to secure the attendance of the accused during trial, its for that reason that bail terms set should not be so lenient as to entice the accused to abscond.

14. In this case, this court already found that the accused was eligible for bond. The court also found that the accused was not a flight risk and that the alleged threats to the witnesses must be referred to the Witness Protection Agency. That the threats were not made by the accused or any agents acting on his behalf. Therefore, whether the witnesses are likely to be threatened or influenced and whether the accused is a flight risk are issues already determined earlier by the court.

15. Section 123 (2) of the Criminal Procedure Code provides that:The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.The Judiciary bail bond policy guidelines similarly provide that bond terms shall be reasonable. Following review, bail set is Kenya Shillings Fifty Thousand (Ksh. 50,000/-) with additional bond of Kenya shillings Three Hundred Thousand (Ksh 300,000/-) with one surety.

16. The accused faces a capital offence; the trial is also at an advanced stage as three (3) witness have testified. Although bail terms must be reasonable to enable the accused comply and benefit from his constitutional right, the court must also not be seen to encourage absconding and thus interfering with the administration of justice.

17. The Bail and Bond Policy Guidelines at page 9 paragraph 3. 1. (d) provides that:“Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.”

16. In this case, the orders of Lesiit J (as she then was) were reasonable in the circumstances of the case and considering the nature of charges brought against the accused. In the premises, I find the application lacking merit, accordingly, it fails and is dismissed.

17. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI, THIS 12TH DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:AccusedMs. Maitha Waweru for AccusedOkeyo for the StateCourt Assistant - Mutai