Republic v Martin Oluoch Okusako,Jared Opondo Owino & Charles Ochieng Dhoye [2015] KEHC 2184 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

HIGH COURT CRIMINAL CASE NO. 1 OF 2015

REPUBLIC........................................................RESPONDENT

-VERSUS-

MARTIN OLUOCH OKUSAKO   ................. 1ST APPELLANT

JARED OPONDO OWINO        ............ ....... 2ND APPELLANT

CHARLES OCHIENG DHOYE     ...................3RD APPELLANT

R U L I N G

1.  The three accused persons are charged with an offence of murder  contrary to Section 203 as read with Section 204 of the Penal  Code.  On 24th November 2011 plea of not guilty was entered in respect of each of the accused. That since plea was taken this  matter has not  proceeded to hearing.

2.  On 24th September 2015 Mrs. Opondo learned Advocate appeared for the three accused whereas learned State  Counsel  Mr. Namasake appeared for the state.

3. Mrs. Opondo, learned Advocate applied for the three accused persons to be released on bond and/or bail since pre-bail report had been prepared and filed by Sub-county Probation Officer of Siaya on the 24th September 2015. In her application she urged that  the Pre-bail report confirm the relatives of the accused are ready   and willing to accept them in the community and that the accused   undertake to live in the immediate Jurisdiction of this Court. On the   other hand she urged the view of the victim family is that they are fearful that the accused if released on bond and/ or bail may  engage with suspects in this matter and end up interfering with witnesses.  She further urged the accused have been in custody   since 2011 and witnesses had appeared before Court once in 2012   when this matter was adjourned.  She urged the release of the accused persons is not likely to affect the situation.  She concluded  by urging access to bond and/or bail is a constitutional right which the three accused are asking to be confirmed on conditions that  this Court may deem reasonable and fit to apply.

4.     Mr. Namasake, learned state Counsel  in response stated that  as much as bond is Constitutional right of an accused person it is    at Court's discretion to grant it or not. On Pre-bail report he submitted he has perused the same and urged this Court to  consider the views of the victim's family, arguing the accused may be used by others not before court to interfere with   witnesses, otherwise the learned state counsel did not have   much   to object on the granting of the bail/bond to the accused     persons.

5.  The pre-bail report dated 24th September 2015 has indicated the permanent addresses of the accused persons, community ties,   and the community members and their respect families willingness to receive the accused back. The victim/complainant   view is opposed to the release of the  accused persons on bond  alleging that the person who hired them is a very dangerous person  who is still free and roaming in the village.  They fear if the  accused are released on bond they will interfere with witnesses. The area administration has no problem with the accused persons being released on bond as they have had no conflict with the law  before this matter.

6.     Under Article 49 (1) (h) of the Constitution of Kenya 2010 it is  provided:-

“49 (1)   An accused person has the right:-

(a)..............................................

(b).............................................

(c)..................................................

(b)....................................................

(e).....................................................

(f)....................................................

(g)....................................................

(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.”

7.   The determination as to whether there are compelling reasons  that can justify the denial for bond/bail should be made upon  evaluation as to whether or not the accused person will attend his or her trial whenever required to do so by the Court. Some of the  factors that court is required to consider include the nature of the offence and seriousness of punishment to be meted if the accused  is convicted; the strength of the  prosecution case; character and antecedents of the accused person; the failure of the accused person to observe bail or bond terms on previous occasions;likelihood of interfering with witnesses; the need to protect the   victim; the relationship between the accused person and potential  witnesses; the accused person flight risk, whether the accused is in  gainful employment; public order; peace and security and protection of the accused person.

8.  In an application for bond or bail it is the duty of the prosecution to satisfy to the court on balance of probabilities of the existence of the compelling reasons for the accused not to be released on bond or bail; the compelling reasons if satisfied would justify the denial of bail.  The reasons should therefore in my view be specifically stated by the prosecution to persuade the court to deny the accused bail or bond.  It is not in my view enough for the prosecution to solely rely on pre-bail report which is only intended to guide court or give court some information that may be considered in an application for bail or bond.  The Pre-bail report remains an opinion given to court which is not binding as it may be tested through cross  examination or by filing of replying affidavit to challenge the same. The prosecution is in a situation where they allege existence compelling reasons is required to file an affidavit in support through the investigating officer and/or victim or victim's family and/or through  the administration in support of the compelling reasons.

9.     In the instant application the state did not allege there being any  compelling reasons to justify denial of bail, however the         prosecution pointed out that from the pre-pail report, the court   should consider the views of the victim's family.  This Court is      entirely in an agreement with the state that the victim or victim's family views should be considered in considering whether to grant bail or to deny bail.  The victim's family in this case has not filed  any affidavit to state the fears they have if bail is granted but the pre- bail report reveal the fears of the victim family is not from the  accused but from a person who is alleged to have hired the  accused  persons to commit the offence and who since then has  been at large.  It is further argued the accused will interfere with the  witnesses; without any elaborations by way of an affidavit.

10.    In a situation where an accused is likely to interfere with the witnesses if released, bond or bail has to be denied, however in  such a situation bond will be denied if there is an existence  of  strong evidence of the likelihood of interfering with prosecution  witnesses; which is not rebuttable and in such a situation court cannot impose conditions to the bail or bond to  prevent such  interference.  The prosecution has not disclosed the names and/ or particulars of witnesses who are  likely to be interfered with and had that been done this court would have considered denying the  accused bond till the said witnesses give evidence.  In view of the  above and in my considered view  the prosecution do not see the likelihood of the accused persons interfering with witnesses   otherwise they would have specifically disclosed the names of  witnesses likely to be interfered with or sought to call the witnesses    before consideration of the application for the bail.

11.   The accused are charged with a serious offence, and  punishment to be meted if convicted is serious, this court cannot comment on the strength of the prosecution case at this  stages, as none of the has been tendered so far however pre-bail  report seems favorable to the accused person; as the accused  person have a fixed bond and administration is not  to their being released on bond nor is there any compelling reason not  to  grant accused persons  bond, I find and hold the accused persons application to be released on bond to be merited.  I   therefore make the following orders.

(a)   Each of the accused persons will be released on personal bond of  Ksh. 700,000/= with one surety of like  sum or on cash bail of  Ksh.  500,000 with one surety of like sum.

(b)   That upon release of the accused persons they should not  interfere or threaten any of the victim family or witnesses and each of the accused person should also be reporting at Siaya  Police Station once in a month on every 15th day  of the month  starting 15th October 2015 if released  and to attend all mentions/hearings as may be set by this court in default the bond be cancelled and/or cash (if any deposited) be forfeited forthwith.

DATED at SIAYA this 29TH DAY of SEPTEMBER, 2015.

J. A. MAKAU

JUDGE

29. 9.2015

Delivered in open court in the presence of:

Mr. Namasake State counsel for the state

Mrs. Opondo Advocate for the accused person

Court clerk - Vincent  Onyango

J. A. MAKAU

JUDGE