Republic v Eliakim [2022] KEHC 15067 (KLR)

Republic v Eliakim (Criminal Case E036 of 2021) [2022] KEHC 15067 (KLR) (Crim) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15067 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E036 of 2021

JM Bwonwong'a, J

October 18, 2022

Between

Republic

Prosecutor

and

Philip Makaya Eliakim alias Mzito

Accused

Ruling

The case for the accused/applicant 1. Through his notice of motion, the accused/applicant has applied for review of the denial of his release on bail pending his trial by this court on June 8, 2022.

2. The application is made pursuant to article 49 (1) (h) of the 2010 Constitution of Kenya and section 362 of the Criminal Procedure Code (cap 75) Laws of Kenya; pending the hearing and determination of his trial on a charge of murder contrary to section 203 as read with section 204 of the Penal Code (cap 63) Laws of Kenya.

3. It is based on the grounds that are set out in the said notice of motion, which majorly are that the accused has undergone total reformation while in the prison remand home. And that he is now a committed Christian and a law-abiding citizen.

4. Additionally, the application is based on the 9 paragraphs supporting affidavit of his advocate (Mr. R.T.Aswani); whose major averments are as follows. The earlier dismissal of his application was based on his being a flight risk. The circumstances have now changed, since he has undergone rehabilitative training sessions; a matter in respect of which he attached certificates.

5. The accused has attached a report from the prison remand home. The report has recommended the accused as a person of good behaviour. The report also shows that the accused has no less than four certificates in respect of bible studies at a diploma and certificate levels.The accused has now been in remand for one year and three months.

6. Furthermore, his advocate has averred that it is no longer necessary to keep the accused in remand. Finally, he has also averred that the prosecution witnesses who have testified are evasive and reluctant to testify thus leading inordinate delay in the hearing and determination of his case.

The case for the respondent. 7. The respondent opposed the review application by submitting that there was no report from the prison remand home. This report was subsequently provided.

Issues for determination 8. I have considered the application for review of the denial of bail. As a result, I find that the issue for determination is whether there has been a change of circumstances.

9. I find as credible the unopposed supporting affidavit that the accused has now changed, since he has undergone rehabilitative training sessions. I find this to be a change in the circumstances to warrant a review of the denial of his bail.

10. In the premises, the application succeeds and the accused is hereby released on bail/bond of Kshs 250,000/- with one surety of a similar amount to be approved by the Deputy Registrar of this court.

11. Alternatively, the accused may be released on a cash bail of Kshs 100,000/-.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. R.T. Aswani for the accused/applicantMs Maina for the Republic/respondent