Republic v Kibunja & 3 others [2022] KEHC 10697 (KLR)

Republic v Kibunja & 3 others (Criminal Case E002 of 2022) [2022] KEHC 10697 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10697 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case E002 of 2022

WM Musyoka, J

June 10, 2022

Between

Republic

Prosecutor

and

Geoffrey Kibunja

1st Accused

Lucy Lozenja

2nd Accused

Charles Ndori

3rd Accused

Patrick Osuku

4th Accused

Ruling

1. The accused are charged with murder, contrary to section 203 of the Penal Code, as read with section 204, of the Penal Code, cap 63, Laws of Kenya. They have pleaded not guilty to the charge.

2. What I am called upon to determine is their application for release on bond/bail pending hearing. The application was not opposed by the prosecution. It was, however, opposed by the Advocate appearing for the family of the victim of the alleged murder. With respect to accused I, he argued that he was a neighbour of the deceased, emotions on the ground were still high and his safety could not be guaranteed. Accused II was said to be a stepdaughter of the deceased, and had threatened family members. Accused III was said to be capable of tampering with witnesses. While accused IV was said to be a foreigner, as he is from Uganda.

3. I called for pre-bail reports. Pre-bail reports have been filed. The report in respect of accused I is not favourable to him. He is described as a crafty, unreliable, undisciplined, devious and unpredictable individual; who has very weak relations with the community. He is also said to be a person whose abode is unclear. The report on accused II favours her release on bond. She is said to have good community ties, although her step-sisters expressed fear about her release, saying that she had threatened them and the deceased. The report on Accused III is favourable, as it is said that there is nothing really adverse against him, for he did not abuse drugs or alcohol, had a fixed abode and was well regarded within the community. The report on accused IV paints him as a person with fairly good conduct and community ties, except that he is a foreigner, for he is a citizen of Uganda.

4. There is also an affidavit sworn on February 28, 2022, by No 79667 Corporal Mark Arawo, of the Directorate of Criminal Investigations, who is the investigating officer in the matter. He avers that the accused ought not to be granted bail. He avers that accused II and III were neighbours of the deceased, and their lives would be in danger from the villagers, if they were to be admitted, in view of the incident. He avers that accused I was of no fixed abode; and accused IV was a foreigner, with no permanent residence in Kenya.

5. I have perused the entire record. I have considered the pre-bail reports too. For accused I and IV, given that they are persons whose abode in Kenya is unclear, it would be imprudent to admit them to bond, for they are flight risks. For accused II and III, they are neighbours of the deceased, their safety cannot be guaranteed. In addition, the family of the victim is said to have expressed fears about them.

6. I am persuaded that this is not a case where I should exercise discretion to grant bail, much as the same is a constitutional right. The accused have liberty to apply, after expiry of one year, perhaps circumstances may have changed by then. They shall remain in remand custody in the meantime.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the Republic.Ms. Repha Mokeira, Advocate, for the accused persons.Mr. Benjamin Ogongo, Advocate for the family of the victim.