Republic v Evans Kipyegon Ng’etich [2020] KEHC 1197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

CRIMINAL CASE NO. 9 OF 2020

REPUBLIC................................................................................DPP

VERSUS

EVANS KIPYEGON NG’ETICH...............................ACCUSED

RULING ON BAIL

1. The Accused is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that on the 22nd day of April, 2020, at Raiya village of Bomet Township sub location within Bomet County murdered Risper Chelangat.

2. The Accused took plea on 30th June, 2020 before Ongeri J. and denied the charge. On the same day, learned defence counsel Mr. Ngetich asked the court to direct that a pre - bail report be filed to aid in his bond application. The court directed accordingly and a pre - bail report was filed on 3rd August, 2020.

3. When the matter came up before me on 26th October, 2020, Mr Cheruiyot made an oral application for the Accused to be released on bail pending trial. Counsel submitted that he had read the pre-bail report and that the same had raised issues on the safety of the Accused. He contended that the issues were not substantiated and that the court should disregard the same and admit the Accused to bail.

4. On his part, Mr. Muriithi learned Principal Prosecution Counsel, opposed the application. He submitted that the pre-bail report dated 14th August, 2020 was not favourable to the accused. In his submission, he observed that the family of the deceased were opposed to accused’s release and that the situation on the ground was volatile. He urged the court to take into account the safety of the Accused.

5.  I have considered the application, the opposing submissions and the probation report.

6.  Article 49 (1)(h) of the Constitution provides that ‘‘An arrested person has the right to be released on bond or bail pending charge or trial, unless there are compelling reasons.’’  The principle set out in R. Vs Danson Mgunya & Anor, 2016eKLR is that the State has the duty to canvass such compelling reasons in court.

7. The probation report states that the deceased was married to the Accused and that they both hailed from the same village. That at the time of her death, the deceased had moved back to her parents’ home. The report details that there was palpable tension between the two families and that the deceased’s family was still bitter with the accused.

8. I have considered the circumstances of this case and in particular the proximity of the accused’s home to that of the deceased and the tension on the ground as stated above. The right under Article 49(1)(h) of the constitution is not absolute and the court can exercise discretion judiciously to deny bail. I am mindful that it is the duty of every citizen to keep peace and not take the law into their own hands. It is also the duty of the police to maintain security and the safety of all citizens including the Accused. However, lapses do occur at times as happened when the deceased lost her life. In the light of those circumstances, I am persuaded not to grant the Accused bail at this stage.

9. The Accused is denied bail and shall remain in custody pending trial.

10. Orders accordingly.

Ruling delivered, dated and signed at Bomet this 28th day of October, 2020.

..................................

R. LAGAT-KORIR

JUDGE

Ruling delivered in the presence of the Accused, Mr. Cheruiyot holding brief for Defence Counsel Mr Kipngetich, Mr. Mureithi for the DPP, and Kiprotich(Court Assistant).