Republic v Ismael Opetu Makokha [2015] KEHC 3450 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 42 OF 2015

LESIIT, J

REPUBLIC………….…….….…..................……....PROSECUTOR

-VERSUS -

ISMAEL OPETU MAKOKHA…….……….……..……..….ACCUSED

RULING

The accused ISMAEL OPETU MAKOKHAis charged with murder contrary to Section 203as read with Section 204 of the Penal Code.  The offence is alleged to have been committed on 2nd March 2015.

The accused has by a Notice of Motion dated 13th May 2015 sought to be released on bail/bond pending the hearing of his case.  The application is based on Article 49(1)(h) Article 50 and Article 51 of the Constitution.

The application is based on six grounds on the face of the application namely:

The applicant has been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 75 of the Laws of Kenya.

The case comes up for hearing on 8th, 9th and 10th December, 2015 and the applicant will not get any opportunity to apply for bail pending hearing and determination of the case before the set hearing dates.

The applicant wishes to apply for bail/bond because his advocate on record did not apply for bail/bond on 23/4/2015 during plea taking.

The applicant has no intention of absconding and undertakes to attend court at all times as and whenever required.

The applicant has a fixed place of abode in Kenya and has no other case pending before this or any other court.

The applicant is willing to abide by whatever terms and conditions as to bail that the court may pronounce.

The application is further supported by an affidavit sworn by the accused person.  The gist of the affidavit is that the defence counsel did not seek bail for the accused during plea, that the accused undertakes to abide by the terms and conditions the court may set and fact he has a place of residence.

Mr. Opoti for accused urged that accused residence was in Mathare North Area I.  The application was opposed orally by Mr. Konga, learned prosecution counsel.  The learned counsel urged that the accused was a flight risk with no known residence.  Mr. Konga urged that Mathare North Area I was a vast area and therefore the accused should have been more specific.

Much has been said about the accused right to bail/bond pending his trial as provided under Article 49(1)(h) of the Constitution. There are undoubtedly certain principles which still apply when considering whether bond should or should not be granted.

Chesoni, J, as he then was set out these principles in the celebrated case of Ng’ang’a vs Republic 1985 KLR 451thus:

“The court, in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (cap 75), should consider the following factors:

In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that:

The accused will fail to turn up at his trial or to surrender to custody;

The accused may commit further offences; or

He will obstruct the course of justice.

The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider;

The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;

The strength of the prosecution case;

The character and antecedents of the accused;

The likelihood of the accused interfering with prosecution witnesses.”

Article 49(1)(h) makes it a duty to the court to grant bail/bond to an accused if there are no compelling reasons not to grant bail.

The prosecution has advanced a reason why bail should not be granted to the accused.  The fact he was vague about his residence therefore making it difficult to find him in case he jumped bail.

An application for bail is a serious one and an accused person wishing to enjoy that right must satisfy the court that he has a known place of abode, which he should specify.  Further he should satisfy the court that once released he has a means of either sustaining himself.  Alternatively he should disclose who will meet his needs.  It will be an added benefit to the accused if those who claims will provide for him also swear an affidavit to substantiate such claims.

The accused has not shown where he will live except to give a large general area where his residence is proposed to be once released on bail.  As to his sustenance, no word was mentioned in that regard.

At this stage I find that the information given by the accused in regard to his place of abode and means of sustenance are vague.

For that reason the application for accused to be released on bail is declined.

Dated 2ndday ofJuly, 2015.

LESIIT, J

JUDGE