[2022] KEHC 16073 (KLR)

Republic v Paapai (Criminal Case E007 of 2021) [2022] KEHC 16073 (KLR) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16073 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Case E007 of 2021

F Gikonyo, J

December 6, 2022

Between

Republic

Prosecutor

and

Ronald Leshoo Paapai

Accused

Ruling

1. The applicant who is charged with murder contrary to section 203 as read with section 204 of the Penal Code, was granted a bond of kshs 500,000/= with one surety of like sum.

2. On March 1, 2022, Mr Ondimu the prosecution counsel complained of massive witness interference by the accused and his family. He applied for cancellation of the bond. He further informed the court that the investigating officer called the witnesses and they indicated that the accused person had threatened them.

3. The prosecution counsel stated that the accused person had also threatened their secretary- and a report to this effect was filed with the police.

4. This court, on prima facie basis, considered the allegations by the prosecution to be of a serious nature bearing upon the integrity of the trial as well as the general administration of justice. The court, therefore, ordered the immediate arrest of the accused person and the cancellation of bond/ bail granted to the accused.

5. On July 5, 2022, Ms Pion orally applied for the accused’s bond to be reinstated. She argued that his bond was canceled on allegations that he was threatening witnesses. According to her, the allegations were not true and no reports were made by the witnesses allegedly interfered with.

6. The defense further stated that the accused was arrested in town during police patrol- which caused his failure to attend court. Sureties are not aware of the allegations of intimidation of witnesses.

7. Mr Okeyo, the prosecution counsel opposed the reinstatement of the bond. He argued that the only option is the COA. That the defense has not shown the existence of any error on the record to warrant a review of its decision. He stated that the accused was threatening even the staff of DPP as well as witnesses. He urged this court to deny his request.

8. In a rejoinder, Ms Pion questioned whether the accused had been charged with a criminal case of intimidating officers of DPP. The allegation constitutes a separate offense. She stated that her client is suffering in remand although he is entitled to bond. He cannot be denied bond on such flimsy allegations. She urged this court to review its ruling.

Directions of the court. 9. On October 4, 2022, the court directed the investigation officer to file an affidavit containing the result of investigations on alleged witness interference by the accused within 14 days. Upon service, the defense is to file replying affidavit within 7 days thereof.

10. On November 1, 2022, Ms Pion confirmed that she had been served with the affidavit. This court directed that she files and serves one-page submissions in 7 days. The same has not been filed.

11. The investigation officer PC David Muoki filed an affidavit sworn on October 28, 2022. He deposed that during the month of December in the year 2020, the accused person threatened a witness by the name of Simon Losikiria Nachoho that he will know this area is not Turkana if he testified against him on the matter before the court. In the year 2022, one Samuel Paaapai who is an uncle to the accused person called on a witness by the name of Solomon Tasur and informed him that since they had settled the matter traditionally the matter before the court had been terminated.

Analysis and determination 12. The applicant seeks reinstatement of bond to accused person. Essentially, they are seeking review of orders cancelling the bond.

13. The prosecution was of the view that bond should not be reinstated, for the accused interfered with witnesses while on bond.

Issue 14. Is there a compelling reason or reasons not to reinstate the bond granted to the accused? The issue is cast on the basis of article 49(1)(h) of the Constitution and the fact that the prosecution bears the burden of proving compelling reason envisaged in the article.

15. No doubt the court has power to cancel a bond or bail granted to an accused person; but, upon compelling reason or reasons or where the accused has breached the terms and conditions of release.

16. The bond herein was cancelled upon allegations of interference with witnesses. Has this allegation been proved as required in law?

Interference with witnesses and victim 17. The prosecution contends that the applicant interfered with witnesses; he and his family threatened witnesses and the secretary of the DPP.

18. As a matter of administration of justice in a criminal trial, a witness should be free from danger, threats, intimidation, harassment, fear, tampering, bribery, corruption, and abuse whatsoever by whomsoever including the accused person. Similarly, any threat of their safety and that of their family by the accused person is an important consideration in determining whether to release the offender on bond.

19. Be that as it may, the prosecution must prove to the required standards that the accused interfered with the witnesses.

20. The applicant/ accused stated that the prosecution did not substantiate allegations that he; i) interfered with witnesses; and ii) threatened the secretary of the DPP.

What does the evidence portend? 21. The investigating officer has filed an affidavit in respect of the allegations of interference of witnesses. On March 1, 2022, Mr Ondimu indicated to this court that the DPP’s secretary has filed a report.

22. The overarching objective of bail is to give the accused his liberty while also ensuring he attends, and does not prejudice or compromise the trial. Interference with witnesses is one such way an accused person could prejudice or compromise the trial.

23. Interference with witnesses may take different forms. It may entail actual physical attack or assault upon, or threats to or intimidation of the witness.

24. Threats; may be delivered or conveyed through various forms or medium of communication- wireless or through old age method- intermediaries. Threats may be of specified or unspecified consequences, or in veiled or coded messages. The court should therefore, carefully examine the threat.

25. Intimidation may be dispersed; it may entail abuse of authority or influence, or use of such violent acts as kidnapping of your kin or relation, or causing injury to your property or business, or commission of bizarre or orgy happenings including witchcraft, or ethnic-based violence or eviction etc.

26. But there is also another type of interference which is stealth and demented; through persuasion, or promise of or conferment of a benefit to a witness or his kin or relation or associate in order not to give evidence or to give evidence schewed towards the accused or to suppress crucial evidence. Trickery or blackmail also falls within this category of interference with witnesses.

27. In the present case, the investigation officer PC David Muoki in an affidavit sworn on October 28, 2022, identified two instances of interference with witnesses.

28. One; that, in the year 2022, one Samuel Paapai who is an uncle to the accused person called on a witness by the name of Solomon Tasur and informed him that since they had settled the matter traditionally also the matter before the court had been terminated. This is a form of interference of witnesses by way of persuasion and trickery.

29. Two; he deposed that during the month of December in the year 2020, the accused person threatened a witness by the name of Simon Losikiria Nachoho that he will know this area is not Turkana if he testified against him on the matter before the court.

30. The investigation officer in the affidavit identified the witness whom was threatened by the accused, and has provided details of the nature of the threat. The witness is a vulnerable witness; he is in the minority group in the area- the Turkana. The kind of threat to the witness, makes it more likely that the vulnerable witnesses may resign to fear due to the presence of the accused in the area.

31. Of fear, see Republic v Fredrick Ole Leliman & 4 others[2016] eKLR, the Court held: -“In my view, the above fears are not mere whims on the part of the prosecution. I am persuaded that because of the volatility of the situation on the ground, the temptation to jump bail is heightened to such an extent that this court cannot overlook it. It is not in dispute that all the accused persons hail from the same locality as the potential witnesses, and this being the case, the danger of such witnesses being driven into a corner by the presence of the accused persons so soon after the ghastly death of the deceased persons is a real possibility. In addition, the fact that the accused persons are so many is likely to send a cold shiver down the spines of such witnesses and corner them into resigning not to appear in court during the hearing of the case even if the accused persons turn up. In a nutshell there, will be no witnesses to testify. As Makhandia J (as he then was) said in the Kiteme Maangi case (above), Murder is a serious offence and attracts the death penalty. Self-preservation is a natural reaction or response of any human being. That self-preservation may take the form of ensuring critical evidence is suppressed forever or the applicant himself takes flight. Finally, such potential witnesses may not be comfortable seeing the accused walk around knowing that their evidence is critical to the success of the prosecution case. That is reason enough to cause such witnesses to have genuine fear, misapprehension, and anxiety. It may even lead to such witnesses refusing to testify due to genuine misapprehension of their safety.”

32. In the circumstances of this case; the nature of the threat, and the fact that one of the witnesses is of a minority tribe; a Turkana in the Trans-Mara area, is real interference with witnesses. There is also the likelihood of interference of the said witness if the accused is released on bond. It bears repeating, that, the witness who is from a minority tribe and is living within this area, would be intimidated by the release and presence of the accused within the same locality. I say these things in full realization of the volatility within Trans-Mara Sub-county.

Conclusion and orders. 33. In conclusion, this court based on the above and the evidence adduced, finds that there is likely interference and intimidation of witnesses especially Simon Losikiria Nachoho a Turkana by the accused. This is a compelling reason to cancel the bond initially granted to the accused. I hereby cancel the bond granted to the accused. The accused person in custody during the trial.

34. As a consequence, the court directs that the hearing of this case be on the basis of priority.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH THE MICROSOFT TEAMS ONLINE APPLICATION, THIS 6TH DAY OF DECEMBER, 2022. F Gikonyo MJudgeIn the presence of:1. Okeyo for respondent2. CA – Mr Kasaso3. Applicant - absent