[2022] KEHC 616 (KLR)

Rotich v Republic (Criminal Case E007 of 2022) [2022] KEHC 616 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 616 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Case E007 of 2022

WK Korir, J

June 14, 2022

Between

Amos Rotich

Applicant

and

Republic

Respondent

Ruling

1. The Applicant, Amos Rotich, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. On 29th March, 2022, the Applicant entered a plea of not guilty to the charge. His application to be released on bond pending trial was opposed by the prosecution through an affidavit sworn on 1st April, 2022 by one of the investigating officers Sergeant Edward Oketch.

2. According to Sergeant Oketch, the Applicant is a flight risk because he does not have a fixed place of abode as the family departed the family land after the alleged murder. The officer further avers that the Applicant previously escaped to Uganda where he worked as a herder and if admitted to bail he is likely to escape to Uganda. It is also the Respondent’s averment that the Applicant does not have a national identity card or any other identification documents hence it would be hard to trace him if he absconds Court while out on bail.

3. The application for bail is additionally opposed on the ground that some of the key witnesses in the case are family members of the Applicant and there is a likelihood that he will interfere with the witnesses if released on bail. Lastly, the investigating officer avers that releasing the Applicant may result in the disruption of public order and security as had happened during the burial of the deceased as there is still tension between the neighbours and the Applicant’s family.

4. Counsel for the Applicant made an oral response to the affidavit filed by the prosecution. Counsel submitted that the Applicant has family members residing in West Pokot County and he therefore has a fixed abode. On the claim that the Applicant is a security risk, counsel submitted that bail should not be curtailed by other factors such as the security of the Applicant’s family members. Counsel also submitted that the Applicant is not a threat to the security of witnesses as alleged by the prosecution and urged the Court to admit the Applicant to reasonable bond terms.

5. The Respondent’s reply was that the grounds raised in opposition to the Applicant’s application for bail are supported and anchored on Section 123 of the Criminal Procedure Codeas well as the Bail and Bond Policy Guidelines. The Respondent further submitted that the pre-bail report filed on 9th May, 2022 also confirmed the averments of the investigating officer.

6. In the pre-bail report filed by J. Maina, a probation officer, on 9th May, 2022, it is stated that the victim was a paternal aunt to the Applicant. The report also indicates that the Applicant had good relationship with the members of the community save for his alcohol consumption. It is further stated that the Applicant’s family was kicked out of their home when the offence was committed hence there are security concerns about his safety should he be released at this moment in time. The Applicant’s parents are also said to be opposed to his release on bail for fear that he might escape to Uganda. Finally, the report indicates that there are still security concerns about the Applicant’s safety as members of his extended family are still bitter that he committed the offence against one of their own.

7. Article 49(1)(h) of the Constitution guarantees the right of an arrested person “to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.” Therefore, the only issue in the matter before me is whether the prosecution has demonstrated compelling reason(s) as to why the Applicant should not be released on bond or bail.

8. Section 123A (1) of the Criminal Procedure Codeprovides the factors to be taken into consideration in determining an application for bail. Those factors are the nature or seriousness of the offence; the character, antecedents, associations and community ties of the accused person; the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and, the strength of the evidence. According to Sub-Section (2) of the same Section, an accused person can only be denied bail if he has previously been granted bail and failed to surrender to custody or if it is necessary for him to be kept in custody for his own protection.

9. In Waititu v Republic [2021] KESC 11 (KLR), the Supreme Court set down the factors to be considered in determining a bond or bail application as follows:“i.The nature of the charges;ii.The strength of the evidence which supports the charge;iii.The gravity of the punishment in the event of conviction;iv.The previous criminal record of the accused, if any;v.The probability that the accused may not surrender himself for trial;vi.The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;vii.The likelihood of further charges being brought against the accused;viii.The probability of guilty;ix.Detention for the protection of the accused;x.The necessity to procure medical or social report pending final disposal of the case.”

10. The Kenyan Judiciary’s Bail and Bond Policy Guidelines issued in March, 2015 at pages 16 to 19 provides the factors to be considered in deciding an application for bail or bond as follows:“(a)The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.(b)The strength of the prosecution case.(c)Character and antecedents of the accused person.(d)The failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bond.(e)Likelihood of interfering with witnesses.(f)The need to protect the victim or victims of the crime from the accused person.(g)The relationship between the accused person and potential witnesses.(h)Child offenders.Where the accused person is a minor, the denial of bail or bond is considered not to be in the best interests of the accused person, who is a minor.(i)The accused person is a flight risk.(j)Whether accused person is gainfully employed.The courts also consider the fact that an accused person is gainfully employed to enhance the likelihood that he or she will attend trial.(k)Public order, peace or security.Whether the release of an accused person will disturb public order or undermine public peace or security. Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would be likely to lead to a public disturbance.(l)Protection of the accused person.Whether pretrial detention is necessary to protect the accused person.”

11. It is the prosecution’s case that the Applicant is a flight risk and does not have a fixed place of abode. The investigating officer further deposes that the Applicant does not have identification documents and in the event that he skips court, tracing him would be cumbersome. According to the Respondent, the pre-bail report confirms its fears that the Applicant may flee to Uganda if released on bond. The averments of the investigating officer were not rebutted by the Applicant and are thus taken to be truthful. The facts placed on record leads this Court to agree with the Respondent that the Applicant is a flight risk.

12. The Respondent has also stated that the Applicant should not be released on bond on account of his own security. It is averred that there is still tension between the family of the Applicant and the neighbours which has forced the family of the Applicant to vacate their land. In response, counsel for the Applicant submitted that denying the Applicant bail on this ground would amount to convicting him before his case is heard. The evidence placed before the Court is that there is general fear expressed by the Applicant’s family that both their security and that of the Applicant would be endangered if he is released on bond. The fear is well-founded considering the fact that the family of the Applicant was evicted from their land by irate neighbours. Of course the ire is expected subside after some time but for now the risk to the Applicant’s life is a compelling reason for denying him bond.

13. As is often stated, the right to bond is not an absolute right. It can be denied where the prosecution has advanced sufficient reasons for denying an accused person bond. The argument by counsel for the Applicant that denial of bond amounts to conviction without trial is therefore misplaced because the Constitution clearly recognizes that bond or bail can be denied for compelling reasons.

14. Based on what has been stated in this ruling, I am convinced by the prosecution and do hold that there are compelling reasons for denying the Applicant bond at this period in time. The Applicant’s application for bond is therefore declined.

15. The prosecution having succeeded in convincing this Court to deny the Applicant bond, it is only fair that the case be heard and determined on priority basis. The Respondent is therefore directed to call all of its witnesses on the hearing date.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 14TH DAY OF JUNE, 2022W. KORIR,JUDGE OF THE HIGH COURT