Republic v Twahir [2023] KEHC 24346 (KLR)

Republic v Twahir (Criminal Case E018 of 2023) [2023] KEHC 24346 (KLR) (Crim) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24346 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E018 of 2023

DR Kavedza, J

October 24, 2023

Between

Republic

Respondent

and

Said Ali Twahir

Accused

Ruling

1. The accused person charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Cap 63 Laws of Kenya. The Particulars of offence are that on the night of 29th May 2023 at Lindi area in Kibra Sub-County Lindi area within Nairobi County, murdered Adulrahim Ratib.

2. The accused persons took plea on 18/4/2023 and denied the charges following which they promptly applied to be admitted to reasonable bail terms pending trial.

The submissions of the accused persons

3. MS Kanyangi, counsel for the accused person submitted that the right to bail is absolute unless there are compelling reasons. She relied on Article 50 (2)(a) of the Constitution to support her argument. She further relied on the case of Republic v Evans Macharia Kimaria Kimaru & Others (2017) eKLR. Where she submitted that the grant of bail should not be viewed as an indication of guilt but as a recognition of the accused’s constitutional right based on the accused’s previous criminal records.

4. With regards to the strength of the prosecution case, Counsel submitted that the accused is not a threat in the society and enjoys deep rooted ties within the community, including familial connections, stable employment, and significant social bonds. As such, he prayed that the accused be released on reasonable bail terms as the stringent standards set by the Constitution have not been met to justify the limitation of the fundamental freedom of liberty of the accused.

The case for the respondent

5. The State has however opposed the release on bond claiming that there are compelling reasons to do so. According to the affidavit in opposition of bond by NO. 110358 PC Felix Kemboi, DCI Kilimani, the accused fled from home after committing the crime to unknown place and was untraceable for a period of 10months. He was later found in Mumias Kakamega County by Criminal Investigation Officer. According to him the accused is a flight risk with an ability of disappearing without any trace if released on bail.

6. He also noted that prior to the incident, the deceased family and the accused family have had several land disputes over the land where they both reside. He further noted that the offence took place in a neighbourhood setting where both the deceased and the accused person were residing. He averred that some of the prosecution witnesses are well known to the accused person as some of them are his relatives and lived with the accused in the same neighbourhood. He is apprehensive that if the accused person is released on bond, he is likely to threaten, intimidate, coerce, interfere or in any other way influence the said witnesses. Lastly, he urged the court not to release the accused person on bond for his own safety since the members of public are still angry with him.

7. To enable the court to determine the issue of bond, the court called for a pre bail report in respect of the accused person. As regards to the accused person’s report dated 29/8/2023, it was indicated that though his family is having some financial constraints they still vouched for the accused to be released on bond. The family acknowledges the offence their kin was charged with and pray for a reasonable bail term. It is indicated that he has never done anything to put the investigations at jeopardy despite his mother and grandfather living in the same neighbourhood.

8. The victim’s family however, opposed the application for the accused persons to be released on bond/bail. In particular, the victim’s grandfather opposed the application for bail citing that the family of the accused still live in Lindi and that if the accused is released may intimidate the prosecution witnesses. The deceased wife lamented that the death of her husband has weighed heavily on her especially the financial burden of bringing up the children. According to her if the accused is released on bail then she will be forced to relocate to another place with her children.

Issues for determination 9. I have considered the parties’ submissions, affidavits and the constitutional provisions cited. From the foregoing, the main issue for consideration is whether the reasons advanced by the respondent are compelling enough to deny the accused persons their respective right to bail.

Analysis and determination 10. Although Bail and bond is a constitutional right of an accused person under Article 49(1)(h) of the Constitution, there are circumstances under which an accused person may be denied bail if the prosecutor is able to demonstrate compelling reasons to warrant the denial.

11. In the case of Republic v Danson Mgunya & Another [2010] eKLR, which is a locus classicus on matters of bail/ bond, the issue was exhaustively addressed. The findings of the learned Judge are replicated in the Bail and Bond Policy Guidelines. The learned Judge stated:“…When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others, the following: -(i)The gravity of the punishment in the event of conviction(ii)The previous criminal record of the accused, if any(iii)The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him……The said court stated that the criteria was not exhaustive.“The main function of bail is to ensure the presence of the accused at the trial. Accordingly, this criteria is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above.”

12. The Judiciary Bail and Bond policy guidelines under paragraph 4. 9 has also provided the factors that ought to be considered by courts in bail and bond applications, inter alia:i.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.ii.The likelihood of interfering with witnesses.iii.The accused person is a flight risk.iv.Whether the accused person is gainfully employed.

13. The main question that this court grapples with is whether the accused person is likely to interfere with the prosecution witnesses if released on bail/bond? The arguments raised by the respondent on interference with witnesses raises the issue of protection of the integrity of the trial and criminal justice process.

14. Indeed, interference with witnesses undermines the criminal justice system and dents the integrity of the criminal process; in turn interference with the administration of justice, and prejudice to the trial. Thus, it is the duty of the court to preserve the integrity of the trial. In this regard, I concur with the sentiments of Lesiit J in R. V. Fredrick Ole Leliman & 4 Others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR where she held that:“Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that accused may interfere with the evidence; or may endanger and individual or individuals or the public at large; likelihood the accused may commit other offences. In this instance where such interferences may occur the court has to determine whether the integrity of the criminal process and the evidence may be preserved by attaching stringent terms to the bond or bail term; or whether they may not be guaranteed in which case the court may find that it is necessary to subject the accused to pre-trial detention.”

15. It is incumbent upon the court to strike a perfect balance which ensures that the trial is not impeded by acts of interference with witnesses, but at the same time, upholding the rights of the accused to fair trial.

16. The circumstances of this case are that the incident happened in the neighbourhood setting, within a residential plot. It is alleged that on that fateful day the accused found the deceased in his compound going on with his chores when he picked a quarrel with him and attacked the deceased causing him head injury. The deceased later succumbed to his injuries. It is further averred by the Investigating Officer that the incident happened in the presence of some of the neighbours who are yet to testify against the accused persons. In as much as the veracity of the said averments is yet to be tested during trial, I find that in the circumstances, the said neighbours may be scared stiffly by the presence of the accused person among them. It therefore follows that the likelihood of interference of witnesses, directly or indirectly, is not far-fetched.

17. In conclusion, the court finds that a compelling reason has been established; likely interference of witnesses especially the neighbours and relatives who are alleged to have witnessed the incident. Certainly, there is a compelling reason to keep the accused person in custody at least until the said witnesses have testified. Accordingly, the accused person is denied bail.

18. If, however, within four (4) months, no witness has testified, the accused person is at liberty to apply for review of the bail terms. The same application shall be considered on its merit and the circumstances of the case at the time.It so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 24TH DAY OF OCTOBER 2023. ________________________D. KAVEDZAJUDGEIn the presence of:Milimani High Court Criminal Case No. E018 of 2023 Page 2 of 2