[2023] KEHC 25290 (KLR)

Republic v Rotich (Criminal Case E065 of 2021) [2023] KEHC 25290 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25290 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case E065 of 2021

JRA Wananda, J

November 15, 2023

Between

Republic

Prosecution

and

Ibrahim Rotich

Accused

Ruling

1. Before the Court is a renewed oral Application for bail. I refer to it as renewed because an earlier similar Application was declined.

2. The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 12/05/2021 at Rural Estate in Iten Township, Keiyo North sub-County within Elgeyo Marakwet County, he murdered one Agnes Jebet Tirop.

3. The accused took plea on 16/11/2021, denied the charge and a plea of guilty duly was entered. The Defence then applied for his release on bail/bond.

4. By the Ruling delivered on 11/05/2022, my brother Nyakundi J declined the Application. The grounds for the denial of bail were that the Pre-bail Report, Victim Impact Statement and the Affidavit sworn by the Investigating Officer disclosed compelling reasons for denying bail, that the conduct of the accused after the offence showed that he was a flight risk, that he did not surrender to the police and he was tracked to Mombasa as he was evading arrest, that he did not rebut the compelling reasons in any way, that the situation in the village was still volatile therefore his safety was not guaranteed and that he was also at risk of committing suicide as he had tried to do so before his arrest.

5. When the parties appeared before me on 18/05/2023, I fixed the trial for 15th and 16th November and 4th and 5th December 2023.

6. On the same date, Counsel for the Accused, Mr. Ngigi Mbugua made a fresh oral Application for bail. He submitted that the situation has changed from that prevailing when the earlier Application for bail was denied. In opposition, Prosecution Counsel, Mr. Mugun contended that as regards the issue of bail, the Court was functus officio as it had already determined the issue of bail. Mr. Warigi, Counsel watching brief for the family supported Mr. Mugun’s position and added that releasing the accused on bail would place the security of the witnesses in peril.

7. In the circumstances, I directed the parties to file brief written Submissions limited to whether this Court can revisit or re-open the issue of bail at this stage considering that a decision on the same had already been made by the Court. I also directed that a fresh Pre-bail Report be filed.

8. Pursuant thereto, the Defence filed its Submissions on 14/06/2023, Counsel for the family of the deceased filed on 23/06/2023 and the Prosecution filed on 10/07/2023. The fresh Pre-bail Report was then filed by the Probation Department on 21/07/2023.

9. In his Submissions, Counsel for the accused submitted that the accused was arrested on 14/11/2021 and has remained in custody ever since, he applied to be released on bail and filed an Affidavit in support, in opposition one Detective CPL Philip Ndeto filed an elaborate Affidavit, in a reasoned Ruling the Court declined the Application, the doctrine of Res Judicata does not apply to criminal cases, in any event, the case facing the accused has not commenced. He cited the cases of Nairobi HC Misc. Cr. Appl. No. 679 of 2004, Omba Gandu Magloire alias Bongo v Republic and Garissa HC Cr. No. 1 of 2012, Republic vs Mohammed Hagar Abdirahman & Another.

10. Counsel submitted further that the primary consideration in a subsequent application for bail is “material change in circumstances”, in the first application the accused had just been apprehended following the incident, tempers of the victim’s relatives were still high and the community had not fully appreciated the circumstances under which the offence had been committed, the accused has been in custody from 14/10/2021 and has received a lot of counselling, he has received salvation and now is a counsellor to others, he is no longer a danger to himself nor to the rest of the community, the complaint that he will interfere or provoke the victim’s relatives into revenge is no longer tenable, non-interference with witnesses can be part of the conditions for his release, the trial is unlikely to end in the foreseeable future, by dint of Article 49(1)(h) of the Constitution, bail is a right to all accused persons unless there are compelling reasons not to grant the same, the accused is ready, able and willing to abide by all and any conditions that the Court may require or set for bail terms, the first report found that the accused has a home at Kesses near Moi University and that he has relatives who are ready to stand surety for him and ensure that he attends Court as and when required to.

11. On his part, Counsel for the family of the deceased submitted that the right to bond is not absolute and can be curtailed where there are compelling reasons, the Court in the Ruling dated 11/05/2022 gave a detailed Ruling on the compelling reasons and since then the circumstances have not changed, the accused is a flight risk, the accused fled from the scene of crime and was arrested 800 km away and that he did not surrender. He cited the case of Grace Kananu Namula vs Republic [2018] eKLR.

12. On the issue of interference with witnesses, Counsel submitted that the Court has dealt with the issue and the circumstances are still the same and that among the witnesses the prosecution intends to call are relatives of the accused or persons known to him. He cited the case of R vs Fredrick ole Leliman & 4 Others [2016] eKLR.

13. Prosecution Counsel Ms. Okok, on her part, recited the findings made by Nyakundi J in the Ruling of 19/04/2022 and added that the Court can only review bond terms where it is established that there are changed circumstances. She cited the case of R vs Diana Suleiman Said & Another [2014] eKLR and submitted further that she reiterates the prosecution’s Submissions considered in the earlier Ruling. She added that the accused has not raised any new compelling issues to warrant review of the earlier orders, circumstances have not changed to warrant the grant of bail, the matter is yet to be heard, the deceased’s family members are still bitter and apprehensive that the accused may cause them harm if he is released, the deceased’s property could be lost under his influence and that the accused’s security is at risk as tension is still high.

14. I note that the fresh Pre-bail Report dated 21/07/2023, like the earlier Report, is still unfavourable to the accused and still does not recommend his release on bail. The grounds relied upon in the Report were similar to those raised before, that, inter alia, there is still tension and animosity on the ground, that the family of the deceased is still in anger and release of the accused is likely to act as an emotional trigger and that the safety of the accused is still not guaranteed.

15. Before I delve into determining the Application, I may just reiterate that under Article 50(2) of the Constitution, every accused person is presumed innocent until the contrary is proved. In relation thereto, the right to bond or bail is recognized under Article 49(1)(h) which provides as follows:“Every Accused person has 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”.

16. In light of the above, I find that the issues that arise for determination herein are as follows:i.Whether the Court can entertain a renewed application for bail pending trial.ii.Whether the accused has established sufficient grounds to be released on bail.

17. From the prosecution’s Submissions, I get the impression that the first issue is now not really in contention. Indeed, orders granting or denying bail can and are regularly and routinely reviewed by Courts with the only factor being determination of whether there has been a “change in circumstances” to warrant the renewed application. There are various authorities confirming this position (see for instance, the decision of E. Mureithi J in the case of R vs Diana Suleiman Said & Another [2014] eKLR).

18. The more relevant issue is therefore the second one, namely, whether the defence has demonstrated sufficient “change in circumstances” to warrant release of the accused on bail. In regard thereto, in the said case of R vs Diana Suleiman Said & Another [2014] eKLR (supra), Muriithi J stated as follows:“10. With respect, I do not agree that the review of bail on the ground of changed circumstances, or changes in the circumstances of the case, including circumstances of the accused, witnesses, victims or the society affected by alleged crime is a strange phenomenon. I would say our courts do it every day when we sit to consider renewed applications for bail such as when volatility on the ground is established to have ceased or for the cancellation of bail on account of accused’s refusal to attend court while on bail, when sureties withdraw or for other reasons.

11. The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances changed in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.”

19. The Court of Appeal, in the case of Republic v Nuseiba Mohammed Haji Osman [2018] eKLR weighed in and stated as follows:We stress the key words “unless there are compelling reasons” and adopt the definition of what amounts to compelling reasons in the High court decision of R V Joktan Mayende & 3 Others, Criminal Case 55 of 2009 as follows:“…And accordingly, 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.”

20. From the foregoing, it is evident that the right of an accused person to be released on bail is a balance between the rights of the accused person and the interest of justice, law and order including factoring in the interest of the victim, or in a case of murder, his family (see also Supreme Court decision in Waititu v Republic (Petition 2 of 2020) [2021] KESC 11 (KLR) (22 October 2021) (Judgment)).

21. As was correctly observed in the said case of Republic v Nuseiba Mohammed Haji Osman (supra), the liberty of every person is sacrosanct and being presumed innocent until proved guilty is a constitutional principle that is intended to keep intact the general fabric of the accused person’s life. On the other hand, the State has a constitutional duty to prosecute those who commit crimes, to ensure public safety between the time of arrest and trial of an accused person, and to protect the integrity of the criminal justice system. In the course of realizing these goals, the individual right to liberty may be qualified. The Court then added as follows:“It follows that where there is sufficient and compelling evidence that an accused person may undermine the integrity of the criminal justice system, by, for example, intimidating witnesses or interfering with the evidence, or fleeing the jurisdiction of the court, or by posing a danger to himself or to any other individual or to the public at large if released, then there will be justification to either deny such an accused person bail, or set stringent bail or bond terms in the interests of justice.

22. The above guidelines are also captured in Section 123A of the Criminal Procedure Code and the Judiciary Bail and Bond Policy Guidelines.

23. Applying the above principles to the facts of this case, apart from the passage of time since 11/05/2022 when Nyakundi J delivered his Ruling, I am not satisfied that the defence has demonstrated any substantial “change in circumstances”. Just like the situation prevailing at the time of the earlier Ruling, the present Pre-bail Report still confirms the situation to be as was deponed in the Affidavit sworn by one Detective CPL Philip Ndeto, namely, that there is still existence of tension and bitterness on the ground and within the community and there is still acrimony between the concerned families with the result that the security of the accused cannot be guaranteed and that the witnesses lined up still comprise of relatives of the accused and there is still therefore the fear of interference with and/or intimidation of witnesses. The submissions by defence Counsel that the accused “has received salvation and is now a counsellor to others” is made from the bar and not supported by any evidence.

24. I also note that the family of the victim/deceased still strongly insists that the accused continue being confined in custody until conclusion of the trial. More importantly, the Report does not recommend release of the accused on bail.

25. Needless to state, the views of the family of the deceased, as bitter or aggrieved as the family may still understandably be for the loss of their loved one, would not “tie the hands” of this Court in making an independent decision devoid of emotions since the accused is presumed innocent until proved otherwise. Having stated so and despite there being no demonstration of any material “change of circumstances”, I still feel that having been in custody for about 2 years, the accused ought to now be allowed his liberty.

26. Noting that the incident the subject of this trial occurred in Iten Township within Elgeyo Marakwet County and the accused deponed in his Affidavit that he has a home at Kesses which is in Uasin Gishu County, a fact confirmed in both Pre-bail Reports on record, and considering the accused’s previous conduct, trying as much as possible to balance the competing interests set out above, I admit the accused to bond on the following terms and conditions to be in place throughout the period of the trial:i.He shall be released on a bond of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/-) with two sureties of similar amount or in the alternative, a cash bail of Kshs 500,000/=.ii.He shall deposit his passport, if he has one, with this Court.iii.He shall report to the Eldoret Police Station and in particular to the Officer in that Station whom the Directorate of Criminal Investigations Headquarters at Nairobi shall nominate or delegate for such purpose, once a week, that is on every Monday, at timings to be directed by such Officer. The details of such reporting or attendances shall be properly recorded and documented by such Officer.iv.He shall not visit or to be within 15 kilometres radius of Iten Township, Keiyo North sub-County, within Elgeyo Marakwet County save with the authority of this Court.v.He shall not leave or travel outside Uasin Gishu County without the express approval of the Investigating Officer or his representative.vi.He shall make no contact in whatever form, either directly or indirectly, whether by himself or third parties, with any of the witnesses listed to testify in the trial herein unless the same is done with the express authority and in the presence of the Investigating Officer in this case or his representative, nor shall he intimidate, influence or in any way interfere with any of the witnesses.vii.In default of any of the terms and conditions set out above, the bond shall be liable to cancellation.viii.Any party is at liberty to apply for review of the above terms if, as and when necessary.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 15TH DAY OF NOVEMBER 2023…………………WANANDA J.R. ANUROJUDGE