Republic v Josephat Abunda Nyangoto [2013] KEHC 2933 (KLR)

No. 21

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 38 OF 2013

REPUBLIC ……………………………………………………………………… PROSECUTOR

VERSUS

JOSEPHAT ABUNDA NYANGOTO ……………………………………………… ACCUSED

RULING

The accused who is charged with murder contrary to section 203 as read with section 204 of the Penal Code seeks bail pending trial.

In demonstrating compelling reasons for refusal of bail pursuant to Article 49 of the Constitution, Mr. Majale for the State submits that the prosecution has a very good case which may result in a conviction and that the accused had following the act of alleged murder disappeared for a month before his arrest, and the severity of the likely sentence may tempt the accused to abscond or go into hiding as he did after the act.

Counsel for the accused, Mr. Minda, submitted that the seriousness of the offence is not a bar to grant of bail under the Constitution, and that the temptation to abscond had not been supported by evidence.

I agree that the constitutional right to bail is available to all accused persons irrespective of the seriousness of the charges that they are facing.  However, where it is demonstrated that the accused had a history of absconding or evidence of disappearance or escape from his usual abode or police custody, the court may find compelling reasons to refuse bail.  I have noted the one month period between the date of alleged offence and the date of the Information.  However, in the absence of a detailed affidavit setting out the circumstances of the accused’s disappearance after the incident charged, the police efforts at tracing and arresting the accused, and the circumstances surrounding this eventual arrest, I am not able to conclude that the accused had gone into hiding and is therefore likely to abscond so as to disentitle him bail.  However, I am not able to totally ignore the investigating officer’s statement on oath in that regard.

In granting bail, the court is required to ensure that the accused attends the trial whenever required by the court.  The accused earned kshs. 500/= per month through operation of a motorcycle transport and, although he states that he has a surety to secure his attendance in court, he has not shown sufficient interest in the area such as would exert a hold on him and prevent his absconding:  he states that he is a farmer but he does not own the land.

In the circumstances of this case, I consider that the purpose of bail in ensuring that the accused attends court for his trial will be served by imposing both a cash bail and bail bond terms, as follows:-

The Accused will deposit a cash bail of kshs. 100,000/=

The accused will provide (1) surety in the sum of kshs. 300,000/=.

The Accused shall not leave jurisdiction of the court without the leave of court.

The Accused will attend the Deputy Registrar every 30 days pending hearing and determination of his trial.

Dated and delivered this 13th day of JUNE 2013.

…………………………………………………

EDWARD M. MURIITHI

JUDGE

In the presence of: -

………………………. for the Accused

………………………….. for the State

Mr. Edwin Mongare Court Clerk