Republic v Colliatus Gaciata Cosmas [2017] KEHC 2229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL CASE NO.53 OF 2015

REPUBLIC

Versus

COLLIATUS  GACIATA COSMAS.........RESPONDENT

RULING

Uncouth expression: We will kill the accused

[1] On 4th May 2017, Mr. Ondieki, legal counsel for the accused person applied for his client to be released on bond. The court had ordered for a pre-bail report to be filed.  Unsigned Report was filed in court. M/S Nelima, holding brief for Mr. Ondieki submitted on the report. She urged that the report is not supported by any evidence especially that the accused had been convicted of any previous offence. She further stated that the accused has another place of abode at Kisii where he can resided as he comes to court for hearing of this case. Mr. Mungai, state counsel argued that the police do not have a way of controlling the movement of the accused and that he may abscond. He objected to his release on bond.

[2] The accused is said to be a flight risk for he goes back to Kisii to hide every time he has committed a crime. His activities at home before arrest have been vividly described in the report by the probation officer. I also note of the threat to the accused by the family of the deceased who have stated categorically that they will kill the accused if he is released. Such conduct is primitive and has no place in modern Kenya where rights of the accused person have been clearly enshrined in and protected by the Constitution; and life is sacrosanct. Even if the family of the deceased has pain following the death of their kin- and naturally this is the case- vicious tendencies towards an accused persons cannot be justified; it merely creates a feeling of dreariness in the court. Our society should know that it is only a court of law which can lawfully find a person guilty and mete out a sentence thereto.  Again, our society should know that this country is governed by the rule of law and no one should take the law into his or her own hands whatever the circumstances.In any event, societies should re-engineer themselves and be prepared to rehabilitate the offenders into productive persons in society rather than cast them away in the manner I have experienced in various parts of the country. Civic education is also necessary towards that end. And I hope the government religious and faith based institutions, Law Society of Kenya, human rights organization and civil society to mention a few will be fully engaged in this noble exercise and eradicate these barbaric tendencies. Nonetheless, I consider the danger to the accused to be of vital bearing on this case and may as well inadvertently induce absconding by the accused. In sum, there is possibility of the accused absconding. This is a compelling reason under article 49(1) (h) of the Constitution for which a person may be denied bail or bond. Accordingly, I deny him bail. He will remain in custody until case is heard or if circumstances change. It is so ordered.

Dated, signed and delivered in open court at Meru this 2nd day of November,  2017

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F. GIKONYO

JUDGE

In the presence of:

M/s. Mwathi for State

Accused – present

Ondieki – absent

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F. GIKONYO

JUDGE