Republic v Kodek Otete [2016] KEHC 6661 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO.140 OF 2012

REPUBLIC                                            -                                   PROSECUTOR

VERSUS

KODEK OTETE                                   -                                            ACCUSED

RULING

The accused person herein KODEK OTETE on 17th November 2015 applied for a review/variation of the earlier bond terms granted by this court on 1st August 2013 with a view to reducing the amount of bond required.

In the ruling of 1st August 2013, Hon. Lady Justice Sitati reviewed the bond terms granted earlier on 6th February 2013 to the extent that instead of being required to raise 2 sureties for Kshs.5 Million (Five million) each in addition to his own bond of Ksh.5,000,000/=, the accused was required to execute his own bond of Ksh.5 million with one surety of a similar amount.

It is the aspect of the Ksh.5 Million bond and surety of the same amount that the accused has been unable to meet to-date almost one year after his bond application was allowed.

Article 49 (1) (h) of the Constitution provides that every accused person has a right to be released on bond on reasonable terms except where there are compelling reasons not to grant bail/bond.

The key words under the said Article are “reasonable terms” and “compelling reasons.” To my mind, reasonable terms calls on the court to exercise its own discretion while taking into account the unique circumstances of each case that is presented before it.  This underscores the fact that bond terms could vary from one case to the next as what could be “reasonable terms” in one case may not be reasonable in another case.

The main purpose of bond is not to unduly punish or place hurdles on the path of an accused person as he awaits his trial but to ensure that he attends court for his trial.

In the instant case, the accused has been in custody since 5th November 2012 when he first appeared in court on the charge of Murder contrary to Section 203as read withSection 204 of the Penal Code.

The trial has not commenced and not even a single witness has testified in this case more than 3 years since it was initiated.

The last time that the case came up for hearing on 17th November 2015, Miss. Mbelete counsel for the State intimated to court that she was unable to proceed with the case due to non-availability of witnesses and that she required time to evaluate the evidence with a view to deciding whether or not to proceed with the case.

Needless to say, a trial whose very commencement is delayed for over 3 years as in the instant case goes against the very tenet of natural justice that requires that trials be fair and speedy.

Clearly, the accused has been unable to raise the sureties that could satisfy the bond terms that he was granted on 1st August 2013.  The State did not oppose the accused’s plea for a reduction of the bond terms.

Under the above circumstances, I find that this is a suitable case for a review of the bond terms with a view to reducing the same to a level that the accused would be able to raise while at the same time ensuring that he attends court whenever he is required to do so.

Consequently, I hereby grant the application for a variation of the bond terms as follows:

The accused may be released on bond upon executing his own personal bond of Ksh.1,000,000/= with two sureties of the sum of Kshs.500,000/= each.

The sureties shall be approved by the Deputy Registrar of this court.

Upon his release, he shall attend court for mention once every 30 days until the hearing and determination of his case or until further orders of this court.

In the event of default of No. (c) above without any justifiable cause, the bond shall be cancelled forthwith and the sureties called to account.

Hearing on 16th March, 2016.

Dated, signed and delivered in open court this 20th day of January, 2016

HON. W. OKWANY

JUDGE

In the presence of:

Otieno for the State

Accused in person

Omwoyo: court clerk