Republic v Kirui alias Nairobian & 3 others [2022] KEHC 15670 (KLR)

Republic v Kirui alias Nairobian & 3 others (Criminal Case E015 of 2022) [2022] KEHC 15670 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15670 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E015 of 2022

RL Korir, J

November 8, 2022

Between

Republic

Prosecutor

and

Ronny Kipkoech Kirui alias Nairobian

1st Accused

Harmon Kemboi alias Cheruiyot

2nd Accused

Erick Kiprono Cheruiyot

3rd Accused

Robert Kipng’etich

4th Accused

Ruling

1. The four Accused persons were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. Particulars of the offence were that on the 25th day of May 2022 at around 0750hrs at Ngererit village, Mogogosiek location in Konoin sub-county within Bomet County jointly murdered Vincent Kipkemoi Yegon.

2. The Accused persons took plea on 27th June 2022 and they all pleaded not guilty to the charge of murder. The 1st, 2nd and 3rd Accused are represented by learned counsel Mr. Barusei while the 4th Accused is represented by Ms. Chemutai.

3. Counsel for the 1st, 2nd and 3rd Accused made an oral Application before Court on 5th October 2022 for the Accused persons to be released on bond. Counsel for the 4th Accused also made a similar Application on the same date praying for the release of her client pending the hearing and determination of the criminal trial.

4. This Court called for a Probation Officer’s Report in respect of all the accused persons. These were all filed on 22nd August 2022.

5. The parties made oral submissions before Court. Counsel for the 1st, 2nd and 3rd Accused submitted that the Probation Officer’s Reports in respect of his clients were 60% positive and that none of the Accused persons was a flight risk as they had committed to attend Court. He urged the Court to issue lenient bond terms and stated that they would not interfere with the witnesses.

6. Counsel for the 4th Accused also submitted that her client undertook to avail himself in Court and was not a flight risk. She urged the Court to consider favourable bond terms and stated that the 4th Accused would abide by any conditions that would be set by the Court.

7. Prosecution counsel submitted that the Court should take into consideration the views of the victims. That if the Court granted them bail or bond, the same should have stringent conditions and the Accused be prohibited from contacting or interfering with the witnesses in the case.

8. I have considered the Application before me, the rival submissions from the parties and the Probation Officer’s Report alongside the circumstances of this case.

9. The right to bail is enshrined in our Constitution under Article 49 (1) as follows:49. Rights of Accused Person(1)An arrested person has the right... : -(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

10. It is clear from the wording of the Constitution the right to bail is not absolute. It is fettered by the existence of compelling reasons.

11. In Republic v Robert Zippor Nzilu [2018] eKLR, Odunga J. referred to the following definition of compelling reasons: -“......The ordinary meaning of the word “compelling” according to Thesaurus English Dictionary is forceful, convincing, persuasive, undeniable and gripping...”

12. This Court holds a congruous position to the one in the Foundation for Human Rights Initiatives v Attorney General (2008) 1 EA 120 where the Constitutional Court of Uganda held that:-“The context of article 23(6) (a) confers discretion upon the court whether to grant bail or not to grant bail. Bail is not automatic. Clearly the court has discretion to grant bail and impose reasonable conditions without contravening the Constitution. While the seriousness of the offence and the possible penalty which would be meted out are considerations to be taken into account in deciding whether or not to grant bail, applicants must be presumed innocent until proved guilty or until that person has pleaded guilty. The court has to be satisfied that the applicant should not be deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment of this would conflict with the presumption of innocence. The court must consider and give the full benefit of his/her constitutional rights and freedoms by exercising its discretion judicially…]. It is not doubted or disputed that bail is an important judicial instrument to ensure individual liberty. However, the court has to address its mind to the objective of bail and it is equally an important judicial instrument to ensure the accused person’s appearance to answer the charge or charges against him or her. The objective and effect of bail are well settled and the main reason for granting bail to an accused person is to ensure that he appears to stand trial without the necessity of being detained in custody in the meantime……”

13. The parameters that must be followed by the Courts in considering bail or bond Applications are premised on section 123A of the Criminal Procedure Code as follows:-1. Subject to Article 49 (I) (h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular-a.the nature or seriousness of the offence;b.the character, antecedents, associations and community ties of the accused person;c.the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; and;d.the strength of the evidence of his having committed the offence(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection.

14. Similarly, the Judiciary’s Bail and Bond Policy Guidelines, March 2015 at pg. 25 sets out the considerations to be made by the Court in determining whether or not to grant bail as follows: -“The following procedures should apply to the bail hearing:(a)The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit, or abet the commission of, a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody.

15. I have considered the Probation Officer’s Reports in respect of the Accused persons. The families of the Accused persons were remorseful for the actions of their sons and had approached the family of the victim for reconciliation. However, the engagements were not fruitful as the victim’s family insisted that they identify the person who could be directly linked to the murder. I have also noted that for the 1st Accused, some of his family members (his paternal aunt and sister who was the victim’s girlfriend) felt that any decision to have him released on bail would be premature at present.

16. I have also considered the victim impact statement in the Report. The victim’s family, and in particular his mother was said to be severely traumatized and was still bitter with the loss of her son whom she described as the only hope for the family. It was the general feeling of the family of the victim that if the Accused persons were released on bail, they would avenge the death of their son.

17. A key issue that arises from the social inquiry report is the relationship between the accused, the deceased and the key witness. Other than the negative emotions of the deceased’s relatives regarding the possible release of the accused, there is a distinct possibility of interference with the main witness who is the sister to the accused and in whose company the deceased is alleged to have been assailed leading to his death. Interference with witnesses has time and again been found to be a compelling reason within the meaning of Article 49(i) (h) of the Constitution. See Republic v Leliman and 4 others (2016) eKLR, Nairobi Criminal Case No. 57 of 2016. Republic v Patius Gichobi and 2 others Criminal Case No. 45 of 2012, (2013) eKLR.

18. I am disinclined to grant the Accused bail at this stage. They shall remain in custody until the said witness has testified. They are at liberty to renew the application at a later state.

19. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 8TH DAY OF NOVEMBER, 2022. .................................R. LAGAT-KORIRJUDGERuling delivered in the presence of the 4 Accused, Mr. Njeru for the State, Mr.Barusei for 1st and 2nd and 3rd Accused, Ms. Chemutai for 4th Accused and, Kiprotich (Court Assistant)