[2022] KEHC 16186 (KLR)

Republic v Ruto & 2 others (Criminal Case E025 of 2022) [2022] KEHC 16186 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16186 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E025 of 2022

RL Korir, J

December 8, 2022

Between

Republic

State

and

Vincent Kipchirchir Ruto

1st Accused

Raymond Kipyegon Mutai

2nd Accused

Aron Kipngeno Chepkwony

3rd Accused

Ruling

1. Vincent Kipchirchir Ruto, Raymond Kipyegon Mutai and Aron Kipngeno Chepkwony 1st, 2nd and 3rd accused respectively are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. They are alleged to have murdered one Sandra Chelangat on October 17, 2022 at Siroin village in Sotik Sub-County within Bomet County.

2. All three accused pleaded not guilty and were remanded in custody pending the filing of a pre-bail report.

3. At the pre-trial on November 28, 2022, Mr Kenduiwo learned defence counsel for all 3 accused made an application for the accused to be released on bond pending trial. Counsel cited Article 49 (1) (h) of the Constitution as giving the accused the right to bail. He submitted that there were no compelling reasons. Referring to the pre-bail report filed in respect of each accused, counsel submitted that what was contained in the report were feelings of some community members and the same did not amount to compelling reasons. He prayed for reasonable bond terms.

4. Mr Njeru, the learned prosecution counsel opposed the application. He asked the court to consider the pre-bail report filed in respect of each accused. Counsel submitted that the purpose of a pre-bail report is to aid the court in exercising its direction.

5. In opposing the application Mr Njeru heavily relied on the probation reports. With respect to the 1st accused, the report stated that he was a truant and his own mother, who was interviewed by the probation officer, objected to his release. The Assistant Chief was also said to have raised concerns on the truancy of the accused and his disposition to commit other offences.

6. For the 2nd accused, counsel submitted that he was a person of gross misconduct and was reported to have threatened his father with death. His family opposed his release on bond due to his propensity for crime.

7. For the 3rd accused counsel submitted that family was unsure whether he should be granted bail. Counsel urged the court to deny all three accused bail.

8. Article 49(1) (h) of the constitution provides:-“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”.

9. It follows that any suspect or accused is entitled to bail unless there are compelling reasons. The Constitution in its wisdom left the definition of ‘compelling reasons’ to the courts. In Republic v Mbiti Munguti[2020] eKLR, Odunga J (as he then was) stated:-“The Constitution however has not identified what qualifies under the term “compelling reasons.” The ordinary meaning according to Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain meaning it is apparent that the court would consider any fact or circumstances brought to its attention by the prosecution which would convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the accused will attend trial.”

10. Where the state through the prosecutor opposes bail, they have a duty to demonstrate to the court the compelling reasons. (see R v Danson Mgunya and Another [2010] eKLR.)

11. In this case, the prosecution opposed bail. In so doing they heavily relied on the pre-bail reports in respect of each accused. The place of a pre-bail report is to aid the court in understanding the socio-economic circumstances of the accused when considering bail. It is not binding to the court. InRepublic v Susan Gakii Ireri [2021] eKLR, Gitari J stated:-“While a pre-bail report is not binding on the court, it assists it in informing the court on the social economic circumstances of the accused while setting bail bond terms.”

12. I have carefully considered what is stated in the report. With respect to the 1st accused, (Vincent Kipchirchir Ruto) what stands out from the social inquiry is the statement of the parent that the accused who is stated to be only 16 years of age dropped out in class 7 due to unruly behavior and at the time of the offence was said to have been planning to marry the deceased whom he had taken to his home to introduce as a potential wife. The family was said to have no permanent home. The mother of the accused objected to his release stating that she had no peace in the community because of the incident and the release of the accused would aggravate the situation.

13. The report in respect of the 2nd accused (Raymond Kipyegon Mutai) is not favourable at all. The 2nd accused is said to be 19 years old and dropped out of school in class 5 due to bad conduct and unruly behavior. He is reported to have threatened his father with death while holding a sharp panga. That he was a threat to the community and the family was now ostracized as a result of the present murder case.

14. With respect to the 3rd accused (Aron Kipngeno Chepkwony), the report states that he dropped out of school in class 7 and has been assisting his single mother eke out a living. That he recently fell into the bad company of the 1st and 2nd accused. His mother feared reprisal from the community if the accused was released on bond.

15. I have considered the application. In so doing, I have found the pre-bail reports useful in understanding the socio-economic circumstances of the accused. I am keenly aware that the allegations made in the reports respecting the guilt of the accused must be proved in evidence. The court therefore will guard the constitutional right of the accused to be presumed innocent until proven guilty.

16. The primary purpose of bail is to secure the accused’s attendance at trial. See James Kioko Malungu v Republic [2016] eKLR. In this case, the families of all 3 accused are said to have newly relocated to their present abode. Further there are no strong family and community ties that would make the accused continue living at their respective homes if released. This is evident from the fact that their respective immediate family members were unwilling to support their release on bond.

17. It has been demonstrated in the reports that the accused were anti-social. They are reported to abuse drugs and were a threat to societal harmony and peace.

18. After a careful consideration of the application, I find that there exist compelling reasons not to admit the accused to bail. Their respective applications are denied. They shall remain in custody pending trial or until further orders of this court.

19. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 8THDAY OF DECEMBER, 2022. .........................R. LAGAT-KORIRJUDGERuling delivered in the presence of 1st, 2nd and 3rd Accused, Mr. Njeru for the State, Mr. Kenduiwo for the Accused and Kiprotich (Court Assistant).