[2022] KEHC 1086 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL CASE NO. E005 OF 2021

(CORAM: F.M. GIKONYO J.)

REPUBLIC..............................................................................PROSECUTOR

VERSUS

SIKOYA OLE NTEI......................................................................ACCUSED

RULING

Bail

[1] The accused herein is facing a charge of murder contrary to Section 203 as read with Section 204 of thePenal Code.

[2] On 23rd February 2021, the accused through his defence counsel Mr. Meingatiorally applied that the accused be released on bond. on the followings grounds that; the offence is bailable under Article 49(i) of the Constitution, the accused has a right to be regarded as innocent until proven guilty, the applicant is a permanent resident of Kenya and resides at Entiapiri village in Naroosura sub location in Narok county, all witnesses have already recorded their statements therefore cannot interfere with them and the accused is not a flight risk.

[3] Mr. Karanja, counsel for the prosecution opposed the application for bond/ bail. The prosecution filed two affidavits. One by PC Paul Kabochi sworn on 19th March 2021 and another by an oldest son to the deceased Jacob Ntiyanisworn on 22nd March 2021 containing reasons they believe constitute compelling reasons not to release the accused on bond, to wit: -

a) Flight risk- the accused person’s home is near the Tanzania border.

b) Safety and security of the accused- that the life of the accused might be in danger as the local community is still hostile and angered by the said death. The two families are still in the healing process.

c) interference with witnesses- the witnesses are close relatives and have fear of freely testifying if the accused is released

[4] This application was canvassed by way of written submissions.

[5] The prosecution reiterated the contents of the affidavits filed to oppose the application for bond in their submissions. They relied in the case ofRepublic Versus Joyce Kagendo [2017] eKLR and Republic Versus Jokatn Mayende and 3 others [2012] eKLR.

[6] The defence submitted that the accused is presumed innocent until proven otherwise by a court of competent jurisdiction. The accused s also constitutionally entitled to bail until and unless compelling reasons are demonstrated. they cited the cases of Republic V Joktan Mayende & 4 Others, R V. David Muchiri Mwangi - Nairobi (milimani ) HC Cr. C No. 46 of 2017, and Republic vs Danford Kabage Mwangi [Nyeri HC Cr. C No. 8 of 2016

[7] The defence submitted that the fact that an accused is a neighbor to a victim does not automatically guarantee that the victim will attack him/her. That animosity between the two families is not a guarantee that the accused’s life is in danger. Further that the accused has an alternative home at Ewaso Ngiro area within Narok South where he can stay away from the witnesses.

[8] The defence submitted that the prosecution has not presented any evidence before court of any attempts by the accused to interfere with witnesses. They cited the case of Republic Vs Richard David Alden [Nairobi HC Cr C No. 48 Of 2016]

[9] The defence submitted that the claim that the accused person will injure the already wounded souls is not a ground to deny bail.

[10] The defence submitted that the accused has bound himself to appear before court whenever needed and abide by the terms that may be imposed on him. They relied on Article 20 and 23 of the Constitution and the cases of Danford Kabage (supra) and Richard David Alden(supra).

[11] The defence urged this court to find that the grounds of opposition presented by the prosecution have not been sufficiently proved and grant the accused’s application and release him on bail or bond on such terms and conditions as may be necessary for the ends of justice meet.

ANALYSIS AND DETERMINATION

[12] The accused faces the grave charge of murder; but he is still deemed innocent. Under Article 49 (1) (h) of the Constitution, he is entitled to bail pending trial unless there are compelling circumstances. See Muraguri v Republic [1989] KLR 181,and R. V. Richard David Alden (2016) eKLR.

[13] The overarching objective of bail is to ensure the accused attends his trial (Muraguri v Republic). Relevant matters to be considered by the court include: the nature of the charge; the likely sentence; previous criminal records, the views of the family of the victim, the possibility of interference with witnesses; the temptation to abscond; and, the safety of the accused.

[14] The Victims Protection Act 2014 requires the views of victim’s family to be taken into account at this stage.

Applying the test

[15] Has the prosecution established compelling reasons not to release the accused on bond?

[16] From the affidavits by the respective parties it is apparent that the bond application has been opposed on three main grounds namely; flight risk, safety of the accused person and interference with witnesses.

Flight risk.

[17] The prosecution made arguments in the affidavit of PC Paul KabochiandJacob Ntiyaniin support of the ground that the accused person was a flight risk; that the home of the accused is near the Tanzania border, and if he is granted bond by court may flee to the neighbouring country. This is not the first time I am hearing that the border situation means a person is likely to flee to the neighbouring country. A person living at the border has no lesser prospects to be released on bond. He will only be denied bond if there are compelling reasons. The argument is, therefore, neither here nor there, for no evidence has been tabled before this court so as to show attempt or that the accused was planning or is likely to leave the jurisdiction of the court or arrangements to leave the country. For the above reasons stated, that ground is not sustainable. I reject the argument.

Safety and security of Accused

[18] The investigating officer and the son to the deceased in their affidavits have stated that the area is very hostile towards the accused person. The defence has disputed this claim stating that no evidence has been produced to show that the accused will be attacked or that there have been any such attempts. That further the accused has an alternative home at Ewaso Ngiro area within Narok South where he can stay away from the witnesses.

Taking law in own hands

[19] This ground is disturbing and depicts a society of the ruffians or Mahocks whose talent was to use all manner of cruel and torturous methods to inflict as much pain as possible upon, and to kill anyone found in their way. Such was a society without law and order. The community herein is within the territorial jurisdiction of the Republic of Kenya- a nation governed by the rule of law and order under the Constitution of Kenya, 2010. I wonder where the said community derives its authority to harm or kill a suspect under trial. No one is above the law or should take the law in their hands. All are bound by the Constitution which reigns. See article 2 of the Constitution which declares the Supremacy of this Constitution thus: -

(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

[20] At this age and time, it is disheartening and depressing that a community or group of people will haughtily express desire to harm or kill a person under trial- who is by law innocent until proven guilty. Is not such an epitome of a criminal mind? Can one notice any difference between such persons and avowed criminal? Any such act to harm or kill a suspect, should be liable to prosecution in criminal law. I have stated before, and I will state it again, that such actions are unlawful, barbaric and uncouth without any place in law and the 21st century. The community in question should let the law punish the accused. This should stop and my view is that, the ground that the security of the accused is threatened by the members of the public or victim family, should never be encouraged to be a ground for denial of bail; otherwise courts will inadvertently promote or condone violence, disorder and usurping of law by individuals or group of people.

[21] In any case, it is the duty of the state to ensure safety and security of its citizens including the accused person. The police should take appropriate measures to ensure security of the accused person. I therefore find the argument that the accused be detained for his own safety and security to be without any legal or factual basis and I reject it.

Interference with witnesses

[22] The prosecution alleges likelihood of interference with prosecution witnesses. Interference with witnesses is an affront to the administration of justice and therefore a compelling reason contemplated in Article 49 (i) (h) of the Constitution. Accordingly, the specific instances of or likelihood of interference with witnesses must be laid before the court with such succinct detail or evidence as to persuade the court to deny the accused bond. See R. V. Jaktan Mayende & 3 others, R. V. Patius Gichobi, R. V. Fredrick Ole Leliman & 4 Others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR and R. V. Dwight Sagaray & 4 others, 2013 eKLR,

[23] Jacob Ntiyani, the son of the deceased has, in his affidavit, expressed fear if the accused is releases. He stated that the accused is their close relative and his presence especially now that the family is still in the initial stages of healing will cause them to resign to fear. He is a cousin to his father, and therefore likely to intimidate them.

[24] The law obligates the court to give effect to the rights of victims expressed in Section 10 of the Victim Protection Act No. 17 of 2014, as follows: -

10 (1) a victim has a right to:-

a. Be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;

b. Have their safety and that of their family considered in determining the conditions of bail and release of the offender; and

c. Have their property protected.

[25] In the present case the prosecution stated in their affidavit that the accused is likely to intimidate and interfere with key witnesses. The prosecution has indicated that some of the witnesses are close family members of the deceased- the son. The key witnesses are vulnerable and feel vulnerable owing to their relationship to the deceased. In this instance the deceased’s son is said to be key witnesses to the brutal murder. The vivid details on how the deceased was murdered is certainly fresh in their minds. The said witnesses would feel threatened and fearful if they became aware that the accused person has been released on bond and roams about within their vicinity. It is the right of victims to be free from, inter alia, intimidation, harassment, fear, tampering, and abuse.

[26] In conclusion, this court finds that based on the evidence of likely interference and intimidation of witnesses especially the key witnesses and victim family, who stand a close relationship with the accused, there are compelling reasons to keep the accused person in custody at least until the said witnesses have testified. The trial Court may reconsider the accused’s bail thereafter having regard to the circumstances of the case in accordance with the guidelines set out above.

[27] The Court directs that the hearing of this case be heard on priority basis.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 24TH DAY OF MARCH, 2022.

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F. M. GIKONYO

JUDGE

IN THE PRESENCE OF:

1. ACCUSED

2. MEINGATI FOR ACCUSED

3. KARANJA FOR THE REPUBLIC

4. MR. KASASO CA