[2023] KEHC 26257 (KLR)

Republic v Sitienei (Criminal Case E008 of 2023) [2023] KEHC 26257 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26257 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Case E008 of 2023

F Gikonyo, J

December 6, 2023

Between

Republic

Prosecutor

and

Japheth Sitienei

Accused

Ruling

Bond/Bail Application 1. Ms. Mireri counsel for the accused orally applied for the release of the accused on reasonable bail terms.

2. The prosecution opposed the release of the accused person herein on bail.

3. The affidavit filed by the prosecution- sworn by CPL John Anyimuon 02. 10. 2023 and filed on 02. 10. 2023- cites the following as compelling reasons not to release the accused on bond, to wit: -i.Witness interference - two witnesses Emmanuel Chepkemoi a minor is a brother to the suspect and David Soi Alias Musa is a cousin to the respondent. The deceased was the applicant’s father.ii.Pending criminal case- the applicant committed the offence herein while he was out on a bond on a case of grievous harm contrary to section 234 of the Penal Code via Emurua Dikirr police station CR no. 701/246/2020 which is still pending before court two at the Kilgoris law courts.iii.Safety and security of the accused- there is a lot of tension in the village from the relatives of the victim and if the applicant is released on bond he is likely to be attacked.

4. The accused did not file any replies.

Analysis And Determination Right to bail 5. All persons charged with a criminal offence are entitled to be released on bond on reasonable conditions except where there is a compelling reason not to be so released (art. 49(1)(h) of theConstitution of Kenya, 2010). This is on the basis of the right to be presumed innocent until the contrary is proven (R. vs. Richard David Alden (2016) eKLR.)

Objective of bail 6. The overarching objective of bail is to ensure the accused gets his liberty but also attends his trial. However, in granting bond the court should ensure that the accused does not prejudice the trial (Muraguri v Republic).

Compelling reason and burden of proof 7. Under Article 49(1)(h) of theConstitution, proof of compelling reason not to release a person on bond lies with the prosecution- these are reasons that justify the limitation of the right to liberty in the context of Article 24 of theConstitution.

Grounds for objecting bond 8. The prosecution. cited three grounds on which they opposed bail;i.Interference with Witnesses,ii.Pending criminal case, andiii.Security and safety of the accused.

Interference with witnesses 9. Judicial precedent has established that, likelihood of or interference with prosecution witnesses is an affront to the trial in particular, and administration of justice in general, thus, a justifiable reason to limit the right to liberty in order to preserve the integrity of the trial (R. vs. Patius Gichobi, article 24 of theConstitution)

10. See also a work of the court in R. vs. Jaktan Mayende & 3 others, that:“…In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice; undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the Preamble to theConstitution of Kenya, 2010……Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give skewed evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.”

11. 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 (R. vs. Dwight Sagaray & 4 others, 2013 eKLR)

12. The prosecution claims that some witnesses are close relatives of the accused and are likely to be interfered with by the accused. The witnesses have been listed as the brother and cousin of the accused and they are minors.

13. These are victims of the crime whose rights the court is obligated to uphold and protect. The rights are stated in Section 10 of the Victim Protection Act No. 17 of 2014 that: -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.

14. The witnesses in question are minors and close family members of the accused which makes them vulnerable witnesses to the accused person. It is highly possible that such witnesses may resign to fear and may not give evidence or give skewed evidence to avert unpleasant repercussions.

15. The witnesses should be protected in accordance with section 10 of the Victims Protection Act from possible harm, intimidation, harassment, fear, tampering, blackmail, and abuse by the accused persons. It is also not lost to the court that the safety of victims is to be considered in determining bond issues.

16. On the basis of material placed before the court, the court finds that the prosecution has proved that the accused is likely to interfere with witnesses herein.

17. It is the duty of the court to ensure that the integrity of the trial is not prejudiced by unlawful acts of the accused such as interference with witnesses. The integrity of the trial guarantees fair trial (R. vs. Fredrick Ole Leliman & 4 Others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR and K K K vs. Republic[2017] eKLR)

18. Of danger upon the person of the accused. This ground is problematic for its potentiality to inadvertently encourage people to be taking the law into their hands to harm a suspect. Be that as it may, the ground has not been proved.

19. The prosecution has also claimed that the applicant while out on bond on another criminal matter committed the offence he is charged with herein. The court is aware of the right to presumption of innocence of the accused. But, violation of bond terms in any case speaks to the person’s ability to adhere to or observe bond terms and conditions.

20. Also related, is the potential abuse of bond especially where a person is charged in more than one criminal case. Bond may be denied in one or more of the cases but granted in one or other of the cases. This is a real challenge to the court, the DPP as well the prison authorities. Until it was proposed in some discourse whether in granting bond the court should be mindful that the person may be lawfully held in custody and therefore subsequent order of bond may not earn the person liberty. In similar manner court orders in an appeal.

Conclusion and Orders 21. In conclusion, there is a compelling reason not to release the accused person on bail. He will remain in custody during the hearing of the case. In light thereof, the hearing of the case to be fast-tracked.

22. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 6TH DAY OF DECEMBER, 2023. .............................F. GIKONYO M.JUDGE