Prosecutor v Ouma [2022] KEHC 16251 (KLR)

Prosecutor v Ouma (Criminal Case E045 of 2022) [2022] KEHC 16251 (KLR) (Crim) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16251 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E045 of 2022

DO Ogembo, J

December 15, 2022

Between

Prosecutor

Republic

and

Silvia Atieno Ouma

Accused

Ruling

1. The applicant/accused Silvia Atieno Ouma, has moved this court by way of a notice of motion application dated August 26, 2022. The same seeks that the applicant be released on bond pending the determination of this case. The application is supported by the affidavit of the applicant sworn on the same date. In the affidavit, the applicant has deponed that she has 2 young children who depend on her and that she suffers from asthma amongst other ailments. She denied that she is a flight risk and with no criminal record. She expressed her readiness to abide by any conditions the court could set.

2. Ms Njue, while moving the application submitted that the accused is presumed innocent till the contrary is proved. And that the prosecution has no compelling reason.

3. Ms Njoroge, for the state, opposed the application. First, that the safety and security of the applicant would be at stake if she is released on bail. Further, that she is likely to interfere with the witnesses who are her friends and neighbours. It was also submitted that she is a flight risk, now that she has been supplied with witness statements.

4. The prosecution, however, added a rider that the applicant, if to be released on bond, should be placed on stringent terms.

5. I have considered this application and the submissions made to the same by the 2 opposing sides. Article 49(1)(h) of the constitution states;“an arrested person has a right To be released on bond and bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

6. The constitution therefore accords the right to bail to all accused persons irrespective of the charges that they face. The rider to this is however, that should the prosecution side prove the existence of any compelling reason, then the right to bail may be denied. Simply put, should the prosecution prove the existence of reasons good enough as to justify the denial of the right, the same may rightly be denied (paragraph 4. 9, Bail- Bond Policy Guidelines.).

7. In our instant case, the prosecution has mentioned the following as constituting compelling reasons;- That the accused ought to be remanded in custody for her own safety.

That the accused is likely to interfere with witnesses.

Thatthe accused is a flight risk.

8. With respect to the said submissions by the counsel for the state, no attempts were made to prove these grounds as compelling reasons. All the prosecution did was mention the same. It has been held several times that it is the duty of the prosecution to show and prove the existence of the compelling reasons. (See Republic v Danford Kabage Mwangi [2016]eKLR, Republic v Godfrey Madegwa & 6 others [2016]eKLR.

9. The prosecution, it appears have considered the strength of their objection and in the circumstances pleaded for stringent terms of bail.

10. I am in the circumstances not convinced that any compelling reason has been established by the prosecution. I dismiss the objections and order that the applicant may be released on bond on the following terms:-i.A bond of Ksh 1 million with 1 surety of a similar amount.ii.In the alternative, a cash bail of Kshs 200,000/=iii.Upon release, the applicant/accused is ordered not to contact and or interfere with the prosecution witnesses, directly or indirectly till this case is determined.iv.The accused is ordered upon released, to attend court at all times as would be ordered by the court till this case is determined.

11. Orders accordingly.

HON. D. O. OGEMBOJUDGE15TH DECEMBER, 2022. Court:Ruling read out in open court (on line) in the presence of the accused (Langata), Ms. Njue for accused and Mr. Mutuma for the state.HON. D. O. OGEMBOJUDGE15th DECEMBER, 2022.