Republic v Wilberforce Kosgei Bett [2017] KEHC 2573 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KABARNET

HCCR NO. 23 OF 2017

(FORMERLY ELDORET HCCR NO. 71 /2014)

REPUBLIC

VERSUS

WILBERFORCE KOSGEI BETT

RULING

1. In its ruling of 18/11/2014, the Court declined to grant the accused bail, ruling that:-

“In the present case, it is not disputed that the deceased was related to the accused; he was his father.  In the absence of a formal affidavit, that raises the specter of a collision with witnesses who are close family members. The offence is alleged to have occurred on 3rd October, 2014, a month and a half ago.  The offence carries the death penalty, granted all those circumstances, I am persuaded that there are compelling reasons for denial of bail in this case.  The application for bail pending trial is thus refused at this stage.  The accused shall be at liberty to renew the application as soon as the said witness testify in this case or the circumstances.  I have referred to charge”.

2. The accused has renewed his bail application and upon request by the Court, the Probation officer has examined the circumstances of the case and reported through a pre-bail Report dated 2/5/2017 as follows:

“The family members, neighbours and local administration were interviewed and they had a common view about offender.  That he was a troublesome and dangerous person at family level to community level and not even one person had a good word about him.  The family members especially mother are still much traumatized about the incident they feel he is a threat to peace and security and could still cause harm if released now.  And none is willing to stand surety for him, there are some community members who still harbor hostility towards him and could easily harm him if released at this stage.

3. The DPP has pointed out to a likelihood of interference with a minor witness of 17 years and requested that the accused’s bail be considered after the said minor had testified.

4. Counsel for the accused urged the Court to release the accused on convenient bond terms and pointed that if the accused had secured sureties he could relocate to another area where he could not interfere with witnesses and where his own safety would not be at risk.

5. On enquiry by the Court, the accused stated that he could secure sureties from persons outside his family.  Family members who had attended Court for hearing of the matter on 11/10/2017 informed the Court that they would not stand his surety.

6. Upon close of the Court’s hearing of the application, the applicant disrupted the Court proceedings by refusing to go back to the cells and insisting that he testify to Court his own side of the story in the matter.  When informed by Court that the hearing of the matter had not began for the taking of witnesses, he violently protested his being asked by prison warders to go back to the cells as his matter had closed for the day upon hearing of the bail application which they had been served.

7. I have considered the full circumstances of the case and taken the view that, although some time has passed since the ruling on the first bail application, there has been no change of circumstances that would warrant the re-consideration of bail. The witnesses who are family members, especially the minor, have not testified, and the Court notes that it is the accused who has not been ready to proceed to hearing  and insisted on having the bail application heard first despite the denial by the Court that  hearing be renewed after the family member witnesses had testified.

8. In addition, the accused’s violent behavior in court lends credence to the statement in the Probation Officer’s Report that the accused is threat to peace and security.  However, until he is found guilty he is entitled a fair trial of the charge before the Court.  The justice of the case appears to be to pursue an expeditious trial for the determination of the accused’s guilt or otherwise and in the meantime, because of the likelihood of witness interference and confrontation with the family members, the accused shall be held in custody until the family witnesses, especially the minor one have testified.

9. Accordingly, the renewed application for bail is rejected there being demonstration no changed circumstances and there being compelling reason of threat of interference and likelihood of confrontation with family members and the community.

DATED AND DELIVERED THIS 22ND DAY OF NOVEMBER, 2017.

EDWARD M. MURIITHI

JUDGE

Appearances:

Mr Miyenda for Accused

Ms. Macharia for the DPP.