State v Evans Nzau Ithoka [2019] KEHC 5083 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

CRIMINAL CASE NO. 7 OF 2019

THE STATE..............................................PROSECUTOR

VERSUS

EVANS NZAU ITHOKA................................ACCUSED

RULING

1. The accused person herein has brought a Notice of Motion dated 30th May, 2019 praying that he be released on bail/bond pending trial.  The application is based on the following grounds:

a.  That the accused person has a constitutional right to bail pending the hearing of this case.

b.  That the costs of the application be in the cause.

2. The application is supported by the affidavit of the applicant sworn on 30th May, 2019.  He avers that he pleaded not guilty to the charges preferred and has a permanent place of abode and that the alleged victims are his relatives; that he will abide by all the conditions that the honorable court will set and that he has young children in class three and pre-unit.

3. The State did not oppose the application. This court called for a pre-bail report to be availed.

4. I have considered the application.  Bail pending trial is a constitutional right provided under Article 49 (1) (h) of the Constitution and which states:

“An arrested 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.”

5. Bail pending trial is a principle of fair trial.  An accused person is presumed innocent until the contrary is proved.  Article 50 (2) (a) provides:

“Every accused person has a right to a fair trial which includes the right to:-

a)  To be presumed innocent until the contrary is proved.”

6. The right to bail can only be denied if the State proves that there are compelling reasons not to grant bail.  The burden is on the prosecution.  In the case of the Republic v Danson Ngunya & Another (2010)eKLR the Court stated:-

“In my judgment, the practice should never be to require the State to prove to the satisfaction of the Court that in the circumstances of the case the interest of justice requires the accused to be deprived of his right to be released from detention.  The burden should be on the State and not the accused.  He who alleges must prove.  That is what we have always upheld in our courts.  If the State wants the accused to be detained pending his trial then it is up to the State to prove when the Court should make such an order……………

7. The State did not oppose the release of the accused on bail.  I have considered the Judiciary Bail Policy guidelines.  The Policy guidelines defines a bail report as follows:

“A social enquiry report based on information generated about the background and community ties of an accused person, and its purposes are to verify information provided to Court by the accused person, to assess the likelihood that the accused person will appear for trial and enable the Court to impose reasonable bail terms and conditions.”

At Chapter 4:26 it is stated:

“The Court may request for a bail report where it considers that it does not have sufficient information to make a fair and appropriate bail decision including the following instances:

a.  Where there is doubt on the information on the accused person relating to the grant of bail;

or

b.  Where the prosecution objects to bail with plausible reasons; or

c.  Where the accused person has been given bail but fails to meet bail terms and seeks review of those terms; or

d.  Where the victim of the crime contests the grant of bail or applies for review of bail conditions, or

e.  On the Court’s own motion where it deems necessary.

8. The bail report has been availed to court and is dated 23. 7.2019. The same has observed that the accused is a 34 year old married man and resides in Umoja Estate and at his Ngoleni village he has no house and instead he is housed at a room in the grandmother’s main house.

9. According to the report, he has no assets but believes that his family will be willing to bond him. It was alleged that he ran away from Garissa because he committed a crime and the community members state that he keeps questionable company. The victim’s family according to the report are still bitter with him. The report noted that he changes residence between Ngomeni and Garissa. The report further reveals that the clan chairman is not opposed to the accused being granted bail and ready to assist the two families in the prevailing circumstances. It further indicated that the enquiry did not detect any threat to the life of the accused. Even though there is a claim that the accused shuttles between Garissa, Kayole and Ngoleni areas, the surety to be approved will be under obligation to ensure his attendance in court. Under the circumstances I find there are really no compelling reasons to warrant a denial of bond pending trial. He should be allowed to enjoy his constitutional right to bail.

10. In the result I find the accused’s application dated 30th May 2019 is allowed in the following terms:

a) The accused is released on bond pending trial in the sum of Kenya shillings One Million plus one surety of like amount.

b) The surety shall be approved by the Deputy Registrar of this court.

c) Upon release, the accused must attend court at all mention and hearing dates without fail until the determination of the matter or until further orders of the court.

d) In default to observe the terms and conditions herein, the bond shall be cancelled and the accused as well as his surety will be called to account.

It is so ordered.

Dated and delivered at Machakos this 1st day of August, 2019.

D.K Kemei

Judge