[2022] KEHC 1409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO. E046 OF 2021

STATE..............................................REPUBLIC

VERSUS

TITUS KIPCHIRCHIR KIRUI .....ACCUSED

R U L I N G

1. The accused, Titus Kipchirchir Kirui, has been charged with the offence of murder contrary to Section 203 as read with Section 204of the Penal Code. The particulars of the offence are that:

“On the 30th day of May 2021 at around 1900hrs at Kabil Kitindo Bar area, in Embakasi Sub-county, within Nairobi County murdered Charles Maina Karugu.

2. On 26th July, 2017, the accused pleaded “Not Guilty” to the charge and the matter was fixed for hearing of bail application dated 20th September, 2021 in which he is seeking to be released on and/or admitted to bail/bond on reasonable terms pending trial.

3. The application is supported by the grounds stated on its face and the depositions made in the Supporting Affidavit sworn by the accused person’s advocate on record, Ms. Roselyne Khamala on 20th September, 2021.

4. The state opposed the application through a Replying Affidavit sworn on 18th October, 2021 by PC Paul Njihia of IPOA Headquarters. He is an investigating officer with IPOA and one of the investigating officers in the present case.

5. The application was canvassed by way of written submissions by the parties filed by counsel for both parties on 29th October, 2021 respectively. The counsel for the parties highlighted their submissions to the court on 1st November, 2022.

6. In their written submissions on behalf of the accused/Applicant, M/S Khamala has stated that the Applicant who is charged with the offence of Murder contrary to Section 203 of the Penal Code was arrested on 30th May, 2021 at Kabil, Kitingo Bar area in Embakasi sub-county within Nairobi County and is still held in custody. She invited the court to consider six (6) issues in determining whether to release the accused person on Bail/Bond. She pointed out the first issue as being about the law with regard to an accused person’s right to bail/bond which is Article 49(h) of the Constitutionand it states as follows:-

49. (1) “An arrested person has the right—

(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released”.

7. It is M/S Khamala’s contention that the Respondent/State has not demonstrated any compelling reason or any reason at all to warrant the accused person being denied this constitutional right of release on bail/bond. She has also stated that the Applicant is willing and has agreed to co-operate with the court. That he will avail himself for any inquiries by the court and will not obstruct or interfere with course of justice and witnesses.

8. Further, M/S Khamala has submitted that the Applicant/Accused is not faced with any danger to warrant him being placed in custody for protection. She has urged the court not to be outweighed with the penal provision of Section 204of thePenal Code which she argues are repugnant to justice.

9. In summing up, M/S Khamala has submitted that the accused/Applicant is sickly (asthmatic) and requires close medical attention by his personal physician. She states that he has children namely; Blessings Cherop, aged 6 years and Kevin Kibet, aged 4 years who rely on him. And that being a member of the disciplined force, the Applicant/accused is unlikely to abscond the court’s jurisdiction.

10. In response, M/S Gikonyo, learned counsel for the State submitted that although they had not responded to the application, they had filed an affidavit dated 18th October, 2021 and submission dated 25th October, 2021. She stated that although the provisions of Section 204of thePenal Code may no longer be mandatory, they cannot be overlooked especially when dealing with an accused that has been charged with a serious offence such as murder.

11. She also submitted that the evidence against the Applicant/accused is so strong and overwhelming, hence deserving of pre-trial detention. She explained that the Applicant as a trained officer who is expected to exercise reasonable force in the use of guns, but he shot and caused the deceased’s death in the most gruesome way. She also submitted that the action of killing the deceased was deliberate and pre—meditated.

12. As for the claim that the Applicant/accused person is sick, counsel for the Respondent submitted that no evidence has been tendered to support this and even then, the prison has medical facilities to cater for the Applicant’s specialized treatment. She further submitted that no evidence had been tendered to confirm that the accused person’s children are not of school.

13. In response, the accused person’s counsel reiterated that there are no compelling reasons to warrant the denial of the accused person’s release on bail/bond and that as an accused person, he is presumed innocent until proven guilty/innocent by the court at the end of trial. She went on to submit that the prosecution’s counsel was alluding to issues of evidence in her submissions just to appeal to emotions instead of basing her arguments on the law. She confirms that the accused person being a member of thedisciplined forces, has committed not to interfere with witnesses or evidence.

14. After hearing the parties in submission, I called for a social inquiry on the accused to be conducted by the Probation Officer and a pre-bail report to be filed on court. The pre-bail report was filed on 1st December, 2021.

15. I have carefully considered the application, the affidavit on record and the rival written submissions filed by both counsel on behalf of the parties together with all the authorities cited. I have also taken into account the filed pre-bail report. Having done so, I find that the only issue arising for determination is whether the applicant should be released on bond and/or bail pending trial.

16. The grant of bail/bond for any accused person is regulated by Article49(I)(h) of the Constitution of Kenya 2010, which provides that:-

“an accused person has a 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”.

17. From this provision bail is a constitutional right save that in exercising its discretion, the court is empowered to give due consideration on whether to deny or grant bail/bond by giving reasons thereof.

18. In the case of R –vs- Joktan Mayende & 3 Others [2012]eKLR,theCourt (Gikonyo J.) considered the scope of Article 49(1) (h)of theConstitution on what constitutes compelling reasons. The Court stated thus:

“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the Court feel strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.”

19. Bail pending trial is the cornerstone of a fair trial and can only be denied where there are compelling reasons not to grant bail. Section 123 A of the Criminal Procedure Code provides the criteria for the Court to consider when granting bail as: -

(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 relevant circumstances and in particular -

(a) The nature or seriousness of the offence;

(b) The character, antecedents, associations and community ties to the accused;

(c) The defendant’s record in respect of the fulfillment 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 protection.

20. Therefore, for an accused person to be denied bail, the burden or onus on a prima-facie basis lies on the prosecution to prove that there are compelling reasons for the accused to be denied release on bail. The accused is therefore constitutionally entitled to bail as a matter of right. The main objective of releasing an accused person on bail/bon pending trial is premised on the presumption that an accused person is innocent until proven guilty.

21. In the Court of Appeal case of Michael Juma Oyamo & Another –vs- Republic [2019]eKLR, the Court of Appeal stated that: -

“…Article 49(1) (h) of the Constitution states 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”. It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person…”

22. In the “Bail and Bond Policy Guidelines” at paragraph 4. 9, it was observed that:-

In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences. According to the decisions of the courts, the determination of whether there are compelling reasons that can justify the denial of bail should be made by evaluating whether or not the accused person will attend his or her trial”.

23. The main ground relied upon by the prosecution in opposing the accusedperson’s application is that the accused will interfere with potential witnesses and their evidence being that he is a police officer still exercising privileges and powers thereto.

24. In the case of Republic –vs-. Dwight Sagaray & 4 Others [2013] eKLR,Korir, J. stated thus:

“For the prosecution to succeed in persuading the court on this criteria, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju Vs Republic [1973] E.A 284, where the court in dismissing the prosecutor’s fear of interference with witnesses stated that before any one can say there would be interference with vital witnesses, at least some facts must be placed before court otherwise it is asking the court to speculate.”

25. The Investigating Officer’s averments which the Prosecution is relying on do not show how the accused is likely to interfere with prosecution’s witnesses, notwithstanding the fact that the accused is a police officer.

26. In my opinion, the status of the accused ought not to be the sole basis for denial of bail unless it is shown that there has been a covert act on his part in the past which indicates that he is the sort of a person who is likely to take advantage of his position to influence the direction that the case is likely to take. The prosecution has also not brought before this court any cogent evidence to prove that the accused has the potential to intimidate witnesses. The issues as raised by the investigating officer in his affidavit are mere allegations which cannot be construed to qualify as being compelling. Secondly, the law on witness protection has put in place measures with regard to the protection and safety of witnesses and the prosecution can make use of the program.

27. With regard to severity of the offence the accused is charged of and the prescribed punishment, it is true that if found guilty the accused is liable to be sentenced to death. However, he is yet to be found guilty. The law is that an accused person is presumed innocent till proven guilty.

28. Gravity of the offence as a consideration was appreciated by Mbogholi Msagha, JinCriminal Application No.319 of 2002 Priscilla Jemutai Kolonge –vs- Republic (unreported) at page 3, wherein he held as follows:-

“However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive.”

29. Additionally, following the Supreme Court decision in the case of Francis Karioko Muruatetu & Another –vs- Republic [2017]eKLR, it is no longer mandatory that those found guilty of murder must be sentenced to death.

30. In conclusion, I am of the view that the prosecution has not demonstrated there exist any compelling reasons to deny the accused bail and therefore allow the Applicant’s/accused persons’ application for release on bail/bond on the following terms:-

a. The accused may be released on a bond of Kshs.1,000,000/= with one surety of a similar amount.

b. In the alternative, he may be released on cash bail of Kshs.50,000/=.

c. The accused to provide better particulars of his actual places of abode and business to the Deputy Registrar

d. The accused is warned not to interfere with any of the witnesses in this case in the form of covert or avert action whether by himself or through others. He should not approach, call or visit the potential witnesses in this case.

e. The accused to ensure he attends court if and when required.

f. Failure to observe the terms and conditions set in (c), (d) and (e) above will result in the bond being cancelled.

It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF

FEBRUARY, 2022

D. O. CHEPKWONY

JUDGE

In the presence of:

M/S Kimani counsel holding brief for M/S Gikonyo counsel for the State

Mr. Amandi counsel holding brief for M/S Khamala counsel for accused

Court Assistant - Gitonga