Republic v Ojwang [2022] KEHC 15063 (KLR)

Republic v Ojwang (Criminal Case E044 of 2022) [2022] KEHC 15063 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15063 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E044 of 2022

TM Matheka, J

November 8, 2022

Between

Republic

Prosecutor

and

Eunice Adhiambo Ojwang

Accused

Ruling

1. Eunice Adhiambo Ojwang is charged with Murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on July 27, 2022 at Mukuru Estate, Lanet Nakuru North Sub County within Nakuru County she murdered Talia Hope Wairimu.

2. She pleaded not guilty on August 26, 2022before the duty Judge then, Justice C. Kariuki. The judge directed that Pre Bail report be filed within fourteen days.

3. The matter was assigned to me and came before me on October 4, 2022, there was no Pre - Bail Report and one was not filed until October 31, 2022.

4. Due to the court’s workload this matter has been fixed for hearing on 14th, 15th, 21st and 22nd February 2023.

5. The Pre Bail Report was made by Probation and After Care Services Busia County on behalf of the Probation and After Care Services Nakuru Count. This is because the accused comes from Elukongo Village Marachi East Location, Butula Sub County.

6. She is the 6th born in a family of eight (8), her parents are still alive though elderly. Hers is a typical border town family, her family extents across the Busia border into Uganda, and she even attended Secondary School in Uganda.

7. While the report indicates she is not a flight risk, the Probation and After Care services officer pointed out that the accused’s elder brother was settled in Uganda and it is likely that could be tempted to relocate to Uganda and it is likely that could be tempted to relocate to Uganda and disappear. Secondly that although the alleged offence was committed in Nakuru, the accused has no abode in Nakuru, and she would have to live in Busia. The officer was of the view that it was unlikely that the family would support her court attendances from Busia, if she was released.

8. Counsel for the accused Mr. Ooga submitted that the court had initially granted bond of Ksh. 200,000/= with surety of similar amount which the family had not raised. That the only person capable of standing surety for her was her father who was also responsible for several grandchildren He urged the court to review the terms downwards. He pointed out that the family had committed to ensuring that she attended court and that whoever stood surety for her would ensure that indeed she attended court.

9. Ms. Murunga for state argued that the fact that accused comes from a border district creates the risk of her disappearing into Uganda and never showing up for her hearing. She urged the court to consider stringent bond terms.

10. I have carefully considered the Pre Bail Report, and the submissions by each counsel. It is true that before we received the report bond had been set at Ksh. 200,000/= with one surety of similar amount.

11. The first thing is to recognize that the accused person has a right to bond on reasonable terms as provided for under article 49(1) (h) of the Constitution as read with sections 123, 123A, 124 of the Criminal Procedure Code. The obligation by the accused is to attend court and abide by all the other conditions attached to the bond until the determination of the case, and the surety to ensure that she does and to report to court in the event of default.

12. Orders of bail/bond are reviewable either upwards or downwards depending on the circumstances of the case.

13. In this case, the accused’s right to bond has not been objected to, the court’s attention has been drawn to the risk of flight by the accused out of the jurisdiction of the court before the final determination of her case, this is noted by the Probation and After Care Services officer on the ground, and the court cannot ignore that.

14. I note that that Probation and After Care Services Nakuru did not do their part of interviewing the victims of the offence, as they simply filed the report from Probation and After Care services Busia. Hence that gap is evident from the report as it is only Probation and After Care services Nakuru who could have interviewed the victims as they are (from the charge sheet) within the jurisdiction of Probation and After Care services Nakuru. This gap needs to be filled.

15. It I also evident from the report that the failure by the family to stand surety for the accused was not caused by inability, but by the fact that they were not aware of the orders of the court.

16. In the circumstance the following orders will issue;1. Probation and After Care Services Nakuru to file a Victim Impact Report within fourteen (14) days hereof.2. Accused’s bond is reviewed upwards to Ksh. 500,000/= with one surety of the same amount.3. Upon release, Probation and After Care Services Busia, in conjunction with the Local Administration, the Assistant Chief and the Village elder to supervise the accused, on bail supervision pending the hearing and determination of this case.4. The order be served on Probation and After Care Services Nakuru and Busia for compliance.Orders accordingly.

SIGNED, DATED AND DELIVERED VIA EMAIL THIS 8TH DAY OF NOVEMBER, 2022. MUMBUA T. MATHEKAJUDGECourt Assistant JenifferAccusedMr. Ooga for accusedMs. Murunga for state