Republic v Gitonga [2023] KEHC 23989 (KLR)

Republic v Gitonga (Criminal Case E097 of 2021) [2023] KEHC 23989 (KLR) (Crim) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23989 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E097 of 2021

DR Kavedza, J

October 24, 2023

Between

Republic

Prosecutor

and

Francis Kinyua Gitonga

Accused

Ruling

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 offence are that on 5th August, 2019 at Kasarani Sub-County within Nairobi County jointly with another before court murdered Jeremiah Ndungu Njuguna.

2. The applicant approached this court by way of notice of motion dated 3rd January 2022 seeking to be released on reasonable bail/bond terms pending his trial. The application is supported by an affidavit of the applicant, Francis Kinyua Gitonga, of similar date. It is grounded on the averments that he has a fixed abode given that he was living with his mother at Kasarani within Nairobi County prior to his arrest and that there are no compelling reasons to deny him bail. He is not a holder of any passport and therefore not a flight risk. He will abide by the bond terms set by the court.

3. In further support of the application, the accused’s mother, Martha Karimi Kuria, swore an affidavit dated 11th January 2023. In her affidavit, she affirmed that she is ready and willing to stand surety for the accused if he is released on bail/bond. She deponed that she resides approximately 300 metres from Malaa Town, off Kangundo Road near Sweetwater private hospital where she has lived for a period of 1 year and will therefore ensure that the accused attends court when required.

4. No 88858 PC Donald Baraka too filed an affidavit to oppose bond. The averments made were that the accused prior to the incident was chair to boda boda operators within Garage area in Kasarani Sub-County. In addition, he has been on the run since August 2019 and was arrested on 11th December, 2021 in a café by police officers on patrol upon receiving reports that there were six (6) young men mugging residents of Sunton Area. Further, in a bid to escape police dragnet, he had relocated to an unknown place, shaved his dreadlocks, switched off his phones and changed his numbers leaving no trace of him. He urged the court to dismiss the application for bail/bond pending the hearing and determination of the case

5. The application was canvassed by way of written submissions. The applicant’s counsel urged the court to allow the application for bond/bail there being no compelling reasons to warrant denial. It was further submitted that the accused is willing to abide by any terms set by court, including depositing his boda-boda log book in court as security, if need be. In support of his submissions, counsel relied R v Gerald Mwenda Kailemia (2013) eKLR and R v Evans Ochieng Rachar (2019) eKLR where the court granted cash bails of Kshs 30,000 and Kshs 50,000 for accused persons charged with murder.

6. The prosecution counsel in her opposition reiterated the grounds raised in the affidavit to oppose bond sworn by the investigating officer. It was her submission that the applicant should not be granted bail/bond on grounds that he is a flight risk and has no fixed abode. She argued that the accused’s behaviour from the date alleged to have committed an offence, to the date of his apprehension demonstrates that he is a flight risk and there is high likelihood that should he be released on bail/bond he will abscond. Lastly, it was argued that the accused has no fixed abode and thus should not be released on bail/bond.

7. It was further indicated in the pre bail report that the accused at the time of his arrest was residing in Kasarani Mwiki area. He was living in a one-bed room house with his mother and siblings, who upon his arrest, relocated to Malaa in Machakos County. The accused’s family and community vouched for his release on bail/bond urging that he will comply with all the terms set by the court. The investigating officer however opposed the application for release on bail/bond and reiterated that it took him two (2) years to arrest the accused who went into hiding after the commission of the offence. The victims indicated that they are yet to come to terms with the demise of their beloved one. They objected to the accused being released on bond as they are apprehensive he might abscond the trial.

Issues for determination 8. I have considered the parties’ submissions, affidavits and the constitutional provisions cited. From the foregoing, the main issue for consideration is whether the reasons advanced by the respondent are compelling enough to deny the accused person his respective right to bail.

Analysis and determination 9. Article 49(1) (h) of the Constitution guarantees the right of an arrested person to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons for the person not to be released. The onus of proof in bail applications in respect of compelling reasons is borne by the state under section 123A of the Criminal Procedure Code (Cap 75) Laws of Kenya. The right for an accused person to be released on bail is not absolute.

10. In determining whether the interest of justice dictates the exercise of discretion under Article 49 (1) (h) of the Constitution, the courts are to be guided by the provisions of section 123A of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides:“In such a determination the courts are to factor the following exceptions to limit the right to bail;(a)Nature or seriousness of the offence;(b)The character, antecedents, associations, and community of the accused person;(c)The defendants record in respect of the fulfillment of obligations under previous grant of bail;(d)The strength of the evidence of his having committed the offence:(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person;(a)Has previously been granted bail and has failed to surrender to custody if released on bail, it is likely that he would fail to surrender to custody;(b)Should be kept in custody for his own good.”

11. the Constitution specifically requires under Article 49 (h) of the Constitution that the terms of bail to be attached to an accused who is released on bail shall be reasonable. Besides the exceptions limiting the right to bail under section 123A of the Criminal Procedure Code, Article 49 (h) of the Constitution places the burden of proof on the state to demonstrate compelling reasons. It is therefore upon the prosecution to prove that there are compelling reasons why the accused should not be released on bail.

12. I have considered the submissions and responses presented by both the accused and the prosecution. It is undisputed that the alleged offence in question occurred on the 5th of August 2019, and the accused was subsequently arrested on the 11th of December 2021, being a time lapse of 2 years and 4 months. The accused has vehemently denied any attempts to evade the authorities prior to his arrest. However, it remains uncontroverted that the accused was the chairman of boda-boda operators within Garage area in Kasarani Sub-County which purportedly attacked the deceased with crude weapons on 2nd August 2019. One might reasonably assume that a chairman, by virtue of representing a group of individuals, would have maintained regular contact with his peers and been easily traceable by members of the public.

13. Nevertheless, it is worth noting that the Investigating Officer took a considerable span of 2 years to arrest the accused. I am cognizant of the fact that the investigating officer averred in his affidavit that the accused had relocated to an unknown place, implying that he had also gone to his home and he did not find him. Given the circumstances, I am not persuaded that the accused was not on the run, or that he was at his residence in Kasarani as alluded to by his family in the pre-bail report. For the foregoing reasons, I find that the accused is a flight risk.

14. Having established the likelihood that the accused was not at home during this period, coupled with the extended time it took for him to be arrested, it only follows that he does not have a fixed abode. He appears to be akin to a free bird, able to relocate at will. The police required 2 years to apprehend him. Furthermore, he is single and, despite being the eldest in his family, there is no evidence that he has any substantial familial obligations that would deter him from departing from the jurisdiction of this court at his discretion.

15. The accused counsel referred this court to the case of R v Gerald Mwenda Kailemia (2013) eKLR where the accused who was facing a charge of murder was granted a cash bail of Kshs 30,000. It is however essential to note that that the circumstances of the said case are distinguishable. The accused person in the Gerald (2013) (supra) case had been in custody for four years yet the matter had never proceeded to hearing. The court also held that since only one person, the deceased’s father, was opposed to the bail/bond application, he could not hold everybody else at ransom. Similarly, the case of Republic v Evans Ochieng (2019) eKLR as relied upon by the defense counsel is distinguishable from the case at hand as the application to bail/bond was not opposed by the state therein.

16. I am therefore satisfied that the prosecution has placed before me adequate compelling reasons to enable me deny the accused his constitutional right to bail which I hereby do.

17. I however note that the accused was arrested on 22nd December 2021 and, for reasons not entirely clear, this case is yet to proceed to hearing. It appears that the delay may have been attributed to the unfortunate loss of the original court file. The file before me is a skeleton file, assembled by the defence counsel in liaison with the prosecution, following the directions of this court on 21st June 2023. Nevertheless, it is paramount that this matter be expedited in the interest of justice. The application for bail/bond by the accused is hereby provisionally denied, until 4 witnesses have testified. If, however within two (2) months, no witness has testified, the accused person is at liberty to apply for review of the orders of the court.

18. It is so ordered.

RULING DATED AND DELIVERED THIS 24TH DAY OF OCTOBER 2023. D. KAVEDZAJUDGE