Republic v Michael [2022] KEHC 199 (KLR)

Republic v Michael (Criminal Case E029 of 2021) [2022] KEHC 199 (KLR) (22 March 2022) (Ruling)

Neutral citation: [2022] KEHC 199 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E029 of 2021

MW Muigai, J

March 22, 2022

Between

Republic

Prosecution

and

Andrew Kilonzo Michael

Accused

Ruling

1. The accused herein Andrew Kilonzo Michael was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars are that on diverse dates between 12th day of April, 2017 and 14th day of April, 2017 at unknown time, at Kyumbi Area, Mathatani Sub-Location, Athi River Sub- County within Machakos County murdered John Njoroge Njuguna.

2. On 29/11/2021 a Medical Assessment Report dated 24/11/2021 was filed in Court stating that the accused person was fit to plead. The charge and Information was read over and explained to the accused person by the Court Clerk – Geoffrey in Kiswahili and the accused herein replied “Si Kweli” – it is not true. The plea of not guilty for the accused person was entered.

3. On 24/02/2022 the Charge/Information was read out and explained to the accused person in a language the accused persons understands – in Kiswahili and the accused person herein replied; “Si kweli” - Not true.

4. Mr. Mutinda the Advocate on record for the Accused person applied for reasonable Bail/Bond terms.

5. The Court ordered for a Pre-bail report in respect of the accused person and the same was to be availed on 10/03/2022 when this matter was coming up for mention.

6. On 10th March, 2022 the Probation Officer in conduct of the case told the Court that the Report was not ready and prayed to avail it on the 21st March, 2022.

7. The Pre-bail Report dated 08/03/2022 was filed in Court 21/03/2022 was conducted and it had the following findings:1. That the Accused person had no history of previous jumping bail or bond.2. That the Accused’s family gave a positive report about him describing him as a family man who was hardworking and resourceful, and has no issue with anyone in the family.3. The family of the victim is apprehensive on him being granted bond for the reasons that he fled out of the area for a period three years and that his family did not co-operate in searching for him despite being neighbours and distant relatives; that the family is not hostile to the accused and his family and he is not a threat to them.4. That the community report is also positive and they stated that the accused was of good character and had been a trusted bodaboda rider in the area; and that the community is not hostile towards him and neither does he pose a security risk.5. The local administration was also positive towards him but cast doubts on his adherence to bond as he had fled the area for a period of three years following the incident and also opined that he poses no security risk to the community members and neither is he a security risk.

8. In conclusion the Report was not favourable for the accused person to be released on bond/bail on basis of his flight risk until the matter is heard and determined subject to the Courts discretion.

9. Article 49(1)(h) of the Constitution provides that: -An accused person has the right 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. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail as follows:The following procedures should apply to the bail hearing:Clause 426a.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.

Determination 11. In light of Article 49(1) Constitution of Kenya 2010, the Prosecution/DPP have/has not adduced any compelling reasons to prevent this Court not to grant bail/bond.

12. The Court finds that the fact that it took three (3) years to trace, apprehend and bring the Accused Person to a court of law predisposes him as one who is likely to fail to attend Court proceedings and a probable flight risk if granted bail and therefore at this stage the Court finds his history of disappearances on a balance of probabilities a compelling reason not to grant bail/bond at this stage.It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT ON 22ND MARCH 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE