Republic v Frankline Wesonga Okoth [2020] KEHC 586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL  CASE NO. 34 OF 2020

REPUBLIC ..............................................................................STATE

VERSUS

FRANKLINE WESONGA OKOTH ...............................ACCUSED

RULING

Article 49(I) (h) of the Constitution of Kenya 2010 reads:-

“An arrested person has the right to be released on bond of bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

The accused herein is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.  Though this is a capital offence, there is no dispute that it’s bailable. What is in issue herein is whether the pre-bail report asked for by the court reveals compelling grounds of which would warrant the accused be denied bail or bond.  The applicant says it does not as the disclosure by the probation officer that the accused tried to evade arrest by changing his sim card and destroying the victim’s phone, is based on information obtained from the investigation diary and should have been availed by the investigating officer so as to be cross examined. The allegation that the accused comes from Busia and can therefore easily abscond is unfair as Busia is part of Kenya.

The prosecutor on her part alleged the pre-bail report is negative on his release on bond and can’t just be wished away.

“Compelling” means evoking interest, attention, or admiration in a powerfully irresistible or overwhelming way.  The pre-bond report does not recommend the accused’s release on bond for the reasons that he is alleged to had changed his sim card and destroyed his victim’s phone.  Also that he hails from Busia and can easily cross to Uganda.  These factors are not compelling that the accused is a flight risk.  If he changed his sim card and destroyed his victim’s phone as alleged, that was before his arrest and could have aimed at concealing the offence which is different from absconding.  Having been identified as a suspect and arrested, changes the entire scenario.  As a known suspect who have been charged, the chances to abscond could be lower.  The other issue is that he hails from Busia.  As rightly put by the Advocate for the applicant, Busia is in Kenya and denying him bond on that ground may amount to discrimination.

The pre-bail report does not therefore disclose compelling reasons which would lead to denial of bond to the accused person.

I do grant him bond of Kshs. 500,000/- with one surety in like amount or Cash bail of 300,000/-.

S. M GITHINJI

JUDGE

DATED, SIGNEDandDELIVEREDatELDORETthis14thday of December, 2020.

In the presence of:-

Mr. Oduor for the accused person

Ms. Limo for state

Ms Gladys  - Court assistant