[2017] KEHC 1504 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 39 OF 2017

REPUBLIC ………………………………………………PROSECUTOR

VERSUS

SILAS KINGA KIARA ……………………..….………… 1ST ACCUSED

HENRY THIANE ………………………………..……….. 2ND ACCUSED

NORMAN BAARIO ………………………………………. 3RD ACCUSED

RULING

1. Before me are two Motions on notice dated 13th September, 2017 and 27th July 2017, respectively in which the accused have sought review of the ruling of this court dated 29th June, 2017, which denied them bond. The gist of the motions is that the accused persons had applied to be released on bond pending trial but the court refused to grant the same on the ground that their lives would be in danger and that if released they would be lynched by the community.

2. When the matter came up for hearing on 8th November 2017, Ms. Nelima for the 1st accused submitted that the 1st accused had been denied bond on the basis that his houses were torched after the incident and that the 1st accused’s brother had sworn an affidavit deposing that he was willing to accommodate the accused at Nairobi. Counsel submitted further that the pre-bail reports on record showed that the 1st accused’s family had moved out of the hostile environment and that there was no evidence that the 1st accused would interfere with witnesses. She concluded her submissions by stating that the accused was willing to abide by any conditions that may be imposed for the grant of bail.

3. Mr. Murage, Learned Counsel for the 2nd and 3rd accused, adopted the submissions of Ms. Nelima and relied on the grounds on the face of the Notice of Motion dated 27th July 2017. He further submitted that the pre-bail reports were positive on the release of the accused persons on bail. He urged the Court to grant the prayers sought.

4. Mr. Namiti for the State on the other hand opposed the Applications on the basis of the Affidavit sworn by the investigating officer on 2nd June, 2017. He indicated that he pre-bail reports showed the current situation on the ground to be fluid and that the lives of the accused persons needed to be preserved. He concluded by observing that the applications did not disclose how the safety of the accused would be secured.

5. This court has considered the affidavits on record and the submission of the Learned Counsel. The pre-bail reports filed on 1st November 2017, show that the 1st accused was said to be a Police Reservist working with KPR and though he had no criminal record, he was alleged to have been involved in anti-social conduct which was hard to verify given his close relationship with the local Police. His community welcomed the idea of his possible release on bond. The deceased’s family however, as would naturally be expected, was vehemently opposed to his release.

6. With regard to the 2nd accused, the deceased’s family was opposed to his release although he is said to be a close family relative. According to them, he was likely to be a threat to their family and was likely to interfere with witnesses given the fact that he had been a police reservist in the area.

7. With regard to the 3rd accused, he was alleged to have been charged and jailed for offences committed while working at Isiolo Hospital. His family members were unwilling to stand surety for him. His and the deceased’s community view him negatively.

8. Under the new Constitutional dispensation, all offences are bailable. Article 49 (1) of the Constitution provides that an accused person has the right to be released on bond or bail on reasonable terms unless there are compelling reasons not to be released. The Constitution however does not define what is meant by compelling reasons. MSA HC CR APPLNO. 66Aand66B of 2011 Mohamed Abdulrahman Said & Another vs Republic [2012] e KLR, and NBI HC JR MISC APP NO. 271 of 2011 Wilson Thirimba vs DPP [2012] e KLR the courts resorted to the Concise Oxford Dictionary 9th Edition to discern the meaning of the terms “compelling”.

9. In the case ofR. vs.Jackton Mayende & 3 Others [2012]Eklrthe court held:-

“… 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 groundsthat meet the high standard set by the constitution.”

10. To this court’s mind, what would be forceful and convincing not to release an accused on bond would be evidence; that the accused is a flight risk; that he would interfere with prosecution witnesses; that the accused is a security risk that is, that he would repeat the same or other offence(s); that the security of the accused is not guaranteed amongst others. These in my view are a few of what may be said to be so forceful and convincing as to deny an accused bond. The list is not exhaustive.

11. In the instant case, the pre-bail reports indicated that the 1st and 2nd accused was Police Reservists and there was a likelihood that they could interfere with investigations. The applicants did not have an opportunity to respond to that allegation. It was further alleged that there was still hostility on the ground. However, it was contended for the 1st accused that he may secure an alternative place of residence.

12. Taking into consideration all the circumstances in this case, I find that there are no compelling reasons not to release the accused on bond. Accordingly, the applications for review are hereby allowed. The accused may be released on bond of KShs.500,000/= and a surety of a similar amount each.

DATED and DELIVERED at Meru this 7th day of December, 2017

A. MABEYA

JUDGE