Republic v Musila [2022] KEHC 218 (KLR)

Republic v Musila (Criminal Case E037 of 2021) [2022] KEHC 218 (KLR) (22 March 2022) (Ruling)

Neutral citation: [2022] KEHC 218 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E037 of 2021

MW Muigai, J

March 22, 2022

Between

Republic

Prosecution

and

Benard Masila Musila

Accused

Ruling

1. The accused herein BENARD MASILA MUSILA was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars are that on the night of 11th and 12thday of December, 2021 at Kilima village, Katelembo Location, Machakos sub-county within Machakos County murdered MARKO MUTHENYA MAWEU.

2. On 8/02/2022 a Medical Assessment Report dated 26/01/2022 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. Mr. Mulei the Advocate for the Accused person applied for reasonable Bail/Bond terms after the pre-bail/bond report is availed to Court.

4. The DPP were to supply the statements/documents to the Defence.

5. The Court ordered for a Pre-bail report in respect of the accused person and the same was to be availed on 21/03/2022 when this matter was coming up for mention.

6. The Pre-bail Report dated 21/03/2022 was filed in Court 21/03/2022 was conducted and it had the following findings:1. According to the victim’s parents and two of his siblings they were not opposed to him being granted bond/bail but two of his siblings opposed the same promising to avenge for the deceased.2. That the Accused person had no history of previous jumping bail or bond.3. That the community members and the local administration at Kauti area said they had no issue with him.4. That the local administration gave a position report about him though his home environment might pose a security risk at the moment due to the division between the siblings.5. The Prosecution Counsel and the investigations officers were not opposed to him being granted bond as long as he binds to attend court dutifully.

7. In conclusion the Report was favourable for the accused person to be released on bond/bail.

8. 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.

9. 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 withwitnesses 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 10. 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.

11. Therefore the bond bail granted is:

The accused is to be released on Kshs.800,000/- bond with surety of like amount.The bond/bail is on the following conditions:-a.The accused person shall at all times appear/attend court as and when required.b.The accused person shall not interfere with the witnesses or tamper with the evidence.c.The accused person shall not be involved and/or reside with the immediate family so as to ensure their security and safety.d.The accused person shall not leave the jurisdiction of this Court without permission of the Court.It is so ordered.DELIVERED SIGNED & DATED IN OPEN COURT ON 22ND MARCH 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE