Republic v Jomo [2022] KEHC 10163 (KLR)

Republic v Jomo (Criminal Case E006 of 2022) [2022] KEHC 10163 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10163 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Case E006 of 2022

F Gikonyo, J

July 14, 2022

Between

Republic

Prosecution

and

Brian Sobera Jomo

Accused

Ruling

Bail Application. 1. The accused/applicant herein is facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. On 22/3/2022, the accused through his defence counsel Miss Hannah Ndungu orally applied that the accused be released on bail. She argued that it is the right of the accused under Article 49(i) (h) of the Constitution.

3. Mr. Ondimu, counsel for the prosecution opposed the application for bond/ bail and stated that they have filed an affidavit on compelling reasons.

4. The prosecution filed a supporting affidavit sworn on 21/3/2022 by CPL Charles Mainya containing reasons they believe constitute compelling reasons not to release the accused on bond, to wit: -i.Flight risk- the accused person has no fixed place of abode from which he can be traced through such as his workplace or permanent house. That he had earlier burnt his house where all his belongings were destroyed.ii.Interference with witnesses- that most of the witnesses are family members including the sister to the deceased Mary Kwambika Machuna and her husband Oscar Juma Khaemba in whose house the deceased was killed.iii.Safety and security of the accused- that the accused’s security will be at risk should he be allowed to get back to the public since he had earlier been subjected to mob injustice and rescued by police.

5. On 27/4/2022, Ms. Hannah Ndungu told this court that she had filed a replying affidavit via email. According to the replying affidavit, he is not a flight-risk nor in any danger from attack by the public. He stated that he will not interfere with witnesses as the investigations have already been completed.

Analysis And Determination 6. I have considered all arguments presented by the prosecution as well as defence legal counsel. The issueis whether there are compelling reasons to deny the accused bail or bond.

7. Of danger upon the person of the accused. This ground is quite problematic as no one should ever think of taking the law into his or her hands to harm another even if such person is suspected of murder. People should learn to obey and respect the law; allow the law to take its own course; try and punish the offender. This should never be encouraged to be a ground for denial of bail. In any case, there is no evidence of imminent dnger to his life. The ground fails.

8. Of flight-risk; the prosecution has shown that the accused may not have any none fixed known abode. They also proved that possibilities of his absconding is high and they have no known place of reference from where they could trace the accused. Despite the statement by the accused that he will not abscond, the prosecution has proved existence of a compelling reason not to release the accused on bond.

9. Of likelihood of interference with witnesses; the prosecution has shown the manner the offence was committed, and that the family members who are victims herein may be in danger if the accused is released. Yet, again, this is a compelling reason despite the statement by the accused that he poses no danger to the victims since the investigations have been completed. Interference with witnesses may be during investigations or trial.

10. In the upshot, the prosecution has proved to the required standard that there are compelling reasons not to release the accused on bail or bond. I reject his request. He shall be held in custody during the hearing of this case.

11. This file shall be remitted back to Naivasha High Court for hearing and determination. It shall be mentioned at Naivasha on 27th July 2022.

12. Right of appeal explained.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 14TH DAY OF JULY 2022F. GIKONYO MJUDGEIn the presence of:Hannah Ndungu for accusedMs. Torosi for DPPMr. Kasaso - CA