Republic v Joyce Kagendo [2017] KEHC 1425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 56 OF 2017

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

VERSUS

JOYCE KAGENDO ………………….......……....….………….... ACCUSED

RULING

1. Joyce Kagendo, hereinafter the accused is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.  She has denied the charge and has applied for bond.  Murder is a bailable offence like all other offences.

2. Bond is a Constitutional right for every accused.  An accused can only be denied bond/bail if, in terms of Article 49 (h) of  the Constitution, there are compelling reasons. Neither the Constitution nor Statute has defined what is meant by compelling reasons.

3. In R. v. Jackton Mayende & 3 Others [2012] eKLR the Court held that:-

“… the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the  accused should not be released on bond.  Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.”

4. What would be forceful and convincing not to release an accused on bond? In my view, this would be, cogent evidence of; the accused being a flight risk; the likelihood of the accused interfering with the prosecution witnesses; the accused being a security risk i.e. his likelihood of repeating the same or other offences; the safety of the accused being in  jeopardy or any such like evidence. The list is not exhaustive.

5. In the present case, the Court (Hon. Onginjo J) ordered for a pre-bail report to be prepared and filed. That report was prepared and filed in Court on 4th December, 2017. The same discloses that the deceased in this case was the husband of the accused; that the eye witnesses are family members of the accused which includes her son.  That when the accused was briefly released from police custody, she threatened the son with death. There is fear that if released, she might interfere with the witnesses in this case.  Her safety is also not guaranteed.

6. To my mind, the close relationship between the accused and the aforesaid eye witnesses makes it more likely that she may  interfere with the witnesses as has been alleged.  It is alleged that she has done so previously and she may repeat the same.

7. In this regard, I am satisfied that there are compelling reasons why the accused should not be released on bond. The application for bond is therefore declined.  She is to conduct her case while in custody.

DATED and DELIVERED at Meru this 6th day of December, 2017.

A. MABEYA

JUDGE