[2022] KEHC 15853 (KLR)

Republic v TK (Criminal Case E008 of 2022) [2022] KEHC 15853 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15853 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E008 of 2022

AN Ongeri, J

November 11, 2022

Between

Republic

Prosecutor

and

TK

Accused

Ruling

1. The application coming for consideration in this ruling is dated October 6, 2022 seeking the following orders: -i.Spent.ii.That the applicant herein be granted bond in such terms as this court will consider just and reasonable.iii.Any other orders as this court considers fit and just to grant.

2. The application is based on the grounds on the face of it and supported by the Affidavit of Tonny Kiptoo the applicant dated October 6, 2022.

3. The applicant avers that he was desirous of being released on bond pending the hearing and determination of the case as this would enable him to continue with his studies and at the same time assist his mother and younger brother.

4. The applicant avers that if released on bond he will attend court as and when required until the matter is heard and determined.

5. The applicant avers that the pre bail report was favorable and that there are no compelling reasons in the circumstances of his case that justify denial of bond.

6. The applicant avers that the he is not a flight risk and that he does not own a passport.

7. The Respondent opposed the Application and filed a Replying Affidavit sworn by CPL James Mwisa dated October 17, 2022 the investigating officer in the case.

8. The investigating officer avers that the accused person was arrested on 4/5/2022 by members of the public at Keben Secondary School immediately after the incident and further that the accused person was saved by police officers from angry students who wanted to lynch him.

9. The investigating officer avers that most of the witnesses are students from Keben Secondary School.

10. The investigating officer avers that the accused person hails from the same village as the deceased’s family members.

11. The investigating officer avers that the accused is a flight risk and that the accused’s presence at home may pose a threat to society if released on bond.

12. The parties filed written submissions which I have considered.

13. The Applicant contended that the Prosecution failed to discharge and prove the assertion that he was a flight risk, the Prosecution did not furnish evidence demonstrating that the Applicant was a flight risk, rather, the applicant was a form three student, aged nineteen (19) years with no national identity card or passport.

14. The Applicant contended the ground that he was a threat to society did not hold water and that the security agencies cannot and ought not to abscond on their constitutional and statutory duty of providing security to all citizens including the applicant.

15. The Applicant cited the cases of Republic v Mbiti Munguti [2020] eKLR and Republic v William Mwangi Wa Mwangi[2014] eKLR.

16. The Applicant reiterated that the Prosecution failed to discharge its burden to show that there was compelling reason to detain him pending hearing and determination of the case.

17. The Applicant therefore sought to have the court release him on lenient and reasonable bond terms or cash bail considering that he was from a humble family.

18. The Respondent opposed the application for bond pending hearing and determination of the case and reiterated the content of the replying affidavit dated October 17, 2022 demonstrating that there were compelling reasons not to grant bond to the accused namely that the accused person was a flight risk and that the applicant’s safety was not guaranteed as angry students wanted to lynch him after he murdered the deceased.

19. The Responded contended that the circumstances of the offence were brutal and savage. The accused person without any provocation and/or reasonable excuse savagely attacked the deceased with a lethal weapon and therefore the likelihood of a heavy sentence being imposed would tempt him to abscond.

20. The sole issue for determination is whether the Applicant is entitled to reasonable bond.

21. When it comes to the issue as to whether bail should be granted or not, there are several criteria which the Courts have set out.

22. The law states that every Accused Person is entitled to be released on bond unless there are compelling reasons not to grant bond.

23. There is no gainsaying that bail and bond is a constitutional right. Article 49(1)(h) of theConstitution is explicit that, unless there is some compelling reason, an accused person, ought to be released on bail, as a matter of right, pending the hearing and determination of his/her case. It provides that: “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.”

24. Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates that:“(1)Subject to article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—a.the nature or seriousness of the offence;b.the character, antecedents, associations and community ties of the accused person;c.the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;d.the strength of the evidence of his having committed the offence;(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection.”

25. The compelling reasons may include such reasons as the Accused Person interfering with witnesses or suppressing evidence ,being a flight risk or being at risk of being lynched or attacked by members of the public.

26. In Republic v William Mwangi Wa Mwangi [2014] eKLR Muriithi, J held that:“It is now settled that in the event that the state is opposed to the grant of bail to an accused person it has the onus of demonstrating that compelling reasons exist to justify denial of the Constitutional right to bail…It is trite that the cardinal principle which the court should consider in deciding whether to grant bail is whether the accused will turn up for his trial and whether there are substantial grounds to believe that he is likely to abscond if released on bail.”

27. In the current case, having taken into account the averments set out in the affidavit of CPL James Mwisa and submissions by counsel, I find that there are compelling reasons to warrant this Court to deny the accused Person bond or bail.

28. I find that the respondent opposed the application for bond pending hearing and determination of the case and reiterated the content of the replying affidavit dated October 17, 2022 demonstrating that there were compelling reasons not to grant bond to the accused namely that the accused person was a flight risk and that the applicant’s safety was not guaranteed as angry students wanted to lynch him after the incident leading to his arrest.

29. The Accused Person will be remanded in custody until there is change in circumstances.

30. In the circumstances, the court will expedite the hearing of this case.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11THDAY OF NOVEMBER, 2022AN ONGERIJUDGECRIMINAL CASE NO.E008 OF 2022 Page 4