Stephen Otieno Owino v Republic [2022] KEHC 2617 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

MISC. CRIMINAL APPLICATION NO. E015 OF 2022

CORAM: HON. R.E. ABURILI, J

STEPHEN OTIENO OWINO.................................................................APPLICANT

VERSUS

REPUBLIC..........................................................................................RESPONDENT

(Being an Application arising from conviction and sentence of the Principal Magistrate’s Court at Siaya in Criminal Case No. 1162 of 2019)

RULING

1.  The Applicant herein is Stephen Otieno Owino.  He is facing a charge of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code before Siaya CM’s Court vide Criminal Case No. 1162/2019.  The case has taken a while and is yet to be heard and determined and it would appear that the covid-19 outbreak has greatly contributed to the delay.

2.  The accused was released on surety bond after Plea was taken on 5/12/2019 by Hon. J. Ong’ondo, Principal Magistrate and the surety was approved on 9/12/2019.

3.  On 5/12/2019, when he took plea, his counsel Mr. Ochichi asked the trial court to grant reasonable cash bail bond terms but the court gave surety terms.

4.  The hearing has not begun because from the trial court record, the accused absconded attending court quite early after the onset of covid-19.  He last appeared in court on 2/3/2020. He never appeared at the hearing on 1/4/2020, 3/8/2020, Mention on 3/7/2020, 10/8/2020, 29/9/2020, 22/10/2020, 23/11/2020, 26/1/2021, 22/2/2021, 15/3/2021, 26/4/2021, 17/6/2021, 6/7/2021, 9/8/2021, 3/8/2021 and on the latter date, the surety appeared and stated that the accused was in Nairobi with his wife.  He asked time to trace the accused.

5.  On 21/9/2021, Mr. Ooro advocate for the surety informed the court that the accused’s family had traced him in Machakos but that he was sick.  He prayed for warrant of arrest to issue to Machakos OCS to apprehend the accused.

6.  The entire trial court record shows that the accused has never attended court since 2/3/2020 and only his sureties attended court seeking for time to trace him as he was away from home until the accused was traced and arrested and brought to court wherein his bond was cancelled.

7.  I have considered the application dated 26/1/2022 seeking for revision of the order of the trial magistrate cancelling the accused person’s bond.  I have read the trial court file and I am satisfied that the trial court did not err in cancelling the accused person’s bond after discharging his sureties who had done all that they could, within their means to secure the attendance of the accused person in vain.

8.  The accused person has annexed to his affidavit the medical notes from Dr. J.L. Amugada indicating that he suffers from acute chronic bronchitis, asthma and migraine with occasional nose bleeding and that he has been attending treatment from 11/6/2020 to 21/10/2021. On each of the dates that the accused is said to have attended clinic, he was given between 1 month and 2 months home rest.

9.  That may be so and merited but the accused person knew that he had a court case pending hence he could not keep away from court for over two years without making an appearance or any inquiry on how his case would be progressing without him. He is to blame wholly.

10. I have considered his counsel’s submission relying on the detailed affidavit and the submission by the Prosecution counsel Mr. Kakoi.

11. Bail is a constitutional imperative but is not absolute. Where is appears that an accused person would be a flight risk or that he would interfere with witnesses, the court would be hesitant to grant bail pending trial.

12. The case facing the accused is very old and involves an alleged death of the victim of the offence. It was registered in court on 5/12/2019 which is over 2 years ago yet the hearing has not taken off due to the absence of the accused person without permission of the trial court.  The accused should have informed the court of his whereabouts so that the hearing takes off even if virtually but he opted to remain silent. With delay, witnesses die and even their memories fade. The trial court has now fixed the case for hearing on 17/2/2022 and 21/2/2022.

13. I am also alive to the fact that there is congestion in our prisons, coupled with the covid-19 pandemic which has necessitated remandees and in some instances, convicts being held at police stations and or being quarantined.

14. Considering the health situation of the accused, I exercise discretion and revise the order of 25/1/2022 made by the trial court and make the following orders:

1.  That the accused person Stephen Otieno Owino shall be released on cash bail of Kshs. 100,000/= to be deposited in this court.

2.  That the accused shall ensure that he attends court physically at all times whenever he is required to attend court until his case is heard and determined.

3.  That his case be fixed for hearing subsequent to the already fixed dates, on priority basis until it is heard and determined.

4.  That the accused person shall, while on bond, not interfere with any of the witnesses scheduled to testify against him.

15. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 2ND DAY OF FEBRUARY 2022

R.E. ABURILI

JUDGE