Republic v Agesa [2022] KEHC 9926 (KLR)

Republic v Agesa (Criminal Case 25 of 2021) [2022] KEHC 9926 (KLR) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9926 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case 25 of 2021

PJO Otieno, J

July 6, 2022

(FORMERLY KAKAMEGA CRIMINAL CASE NO. 17 OF 2016)

Between

Republic (D.P.P.)

Prosecution

and

Rodgers Agesa

Accused

Ruling

1. Counsel for the defence made an application that the accused be released on bond so that he can stand his trial while out of custody and said that there is a sister called Sheila Muhati who can stand surety for him. The prosecution did not object to the request provided the Accused does not interfere with or threaten its witnesses.

2. Prior to such submissions the Probation Office had filed a report dated August 9, 2021 on the August 24, 2021 which revealed the disappointment of the family, community and the secondary victims of the offence with the conduct of the Accused. In fact it is specifically pointed out that the accused would have wanted the mother to be the surety but the mother is hesitant and does not wish to welcome him back home for having committed the crime and sees him a person set on a road to self destruction.

3. The report concludes that the accused is out of favour with the community and family and that nobody may want to stand surety for him and yet himself has no capacity to avail security determined as a term of bond. That is the only reason the report recommends the accused as unsuitable to be admitted to bail.

4. To court, the Probation Officer’s report is merely advisory and not compelling to court which must retain its discretion on grant of bail and the terms to be imposed. Whether or not the accused shall be able to meet the bond terms is never a task for the court to assess. The court is only expected to impose terms that are neither exorbitant nor prohibitive but firm enough to secure the attendance of the accused at trial.

5. In law the consideration for the court considering request for bond is that bond is a constitutional right that the court is expected to grant unless it be shown a compelling reason to decline grant of bond. Fundamental consideration is the attendance by the accused at trial and the factors that may emerge as compelling reasons to deny bail include; risk of flight, risk of revenge against the accused by the community or the victim’s family, the threat to witnesses or interference with them and the antecedents of the accused like a history of being a repeat offender or that who has jumped bail1. 1Kelly Koses Bunjika –Vs- Republic [2017] eKLR and Republic –Vs- Mbithi Manguti [2020] eKLR

6. None of those has been demonstrated here. In fact the prosecution has no objection to bond. That being the case, the accused is entitled to be released on bond and I do grant him bond of Kshs. 300,000/= with two sureties in the said sum. In the alternative he may be released on cash bail of Kshs. 150,000/=.

7. Matter should now be directed towards being heard and determined. It is stood over to July 13, 2022 for case conference. Let Mr. Matete be notified.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 6TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Mboozo for the ProsecutionNo appearance for the AccusedAccused presentCourt Assistant: Kulubi