Khalif Billow v Republic [2017] KEHC 3096 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. CRIMINAL APPLICATION NO. 66 OF 2017

KHALIF BILLOW……………………..................APPLICANT

VERSUS

REPUBLIC…………....................…………… RESPONDENT

R U L I N G

1. Khalif Billow, the Applicant has applied to this Court for review of the bond terms he was given by the trial Court, in the Isiolo Chief Magistrate’s Court Criminal Case No. 302 of 2017 (Hon. Mungai, CM). In that court, the Applicant is facing three (3) counts connected with terrorism. These are; being a member of a group with “terrorist origin”; being in possession of articles connected with a terrorist act and being in possession of an ammunition.

2. On denying the charges, the trial Court admitted the Applicant to bond of KShs. 2 million with two (2) sureties of a similar amount.  This was on 6th August, 2017. A month later, the applicant made his application to this Court on 29th September, 2017 for review of those bond terms. The application is expressed to be brought under Article 50 of the Constitution, Sections 362, 365, 366 and 377 of the Criminal Procedure Code.

3. The grounds for the application are that whilst there was no compelling reasons to deny him bond, the bond terms were excessive amounting to denial of the same; that however grave the charge was, that cannot be a basis to deny one bond and that he is innocent until proven guilty and that his family is unable to raise the bond.

4. There is no dispute that under Article 49 of the Constitution, it is a fundamental right of every accused person to be accorded reasonable bail or bond terms.  This is a right that is greatly associated with the right to liberty which is a non-derogable right.   Liberty to an individual is paramount, indeed central for an individual to be able to enjoy all the other rights and freedoms enshrined in the Constitution.  In this regard, unless there be compelling reasons, an accused is never to be denied bail or bond on reasonable terms.

5. Bail or bond is an avenue that is available in law to enable an accused person undertake his trial while out of custody.  It is a measure put in place by law to ensure that an accused attends court during his trial.  It is for this reason that the Constitution demands that the bail or bond be given on terms that are reasonable and which will not amount to denial of the same.

6. What then may be the so called compelling reasons. These have neither been set out in the Constitution nor statute.  However, they may include an accused being a flight risk; an accused interfering with the prosecution witnesses, an accused safety being at risk or the likelihood of an accused repeating the offence.  The list is however, not exhaustive.

7. It is true that however grave an offence is, that cannot be a basis for denial of bond but is nevertheless a consideration when assessing bond terms.  The more gravious an offence is, the more unlikely an accused is to turn up for trial.  The bond terms must therefore be commensurate with the nature of the offence.

8. In the present case, the trial Court has already exercised its discretion in favour of granting the applicant bond. His complaint is that the bond terms are onerous.  In my view, what this Court has to consider is whether the Court of first instance exercised its discretion erroneously or whether there are any circumstances to warrant this Court to interfere with that exercise of discretion.

9. Mr. Mulochi for the prosecution did not oppose the application.  He left it to Court.  This Court ordered for a pre-bail report on the applicant.  That report is dated 29th September, 2017 and has been filed in court.  The report has set out the personal background of the applicant, the attitude of the community towards the applicant and the alleged offence and the economic background of the applicant.

10. This Court has had no advantage of seeing or knowing what the trial Court considered in imposing the bond terms which the applicant considers to be onerous.   It must be remembered that, before making any decision, the Court must at all times weigh the interests of the individual against those of the society.  While preserving and jealously protecting the right of the individual, the Court cannot ignore the public interest that the Society likewise needs protection.

11. Considering the nature of the charges facing the applicant; the averments of the applicant; the submissions of Ms. Thibaru, Learned Counsel for the applicant and the pre-bail report and the applicant’s right under the Constitution, I am inclined to review the bond terms downwards.  The bond terms are reduced to KShs.1. 0 million with one surety of a similar amount.

It is so ordered.

DATED and DELIVERED at MERU this 5th day of October, 2017.

A. MABEYA

JUDGE