ABDI ABDULLAHI MUHUMED VS ODPP ABDI ABDULLAHI MUHUMED VS ODPP

The applicant by way of a notice of motion brought under certificate of urgency received by the court on 26^th December 2024 sought to be released on bail pending trial in Makadara Criminal Case N0.E421 of 2023 Republic Versus Abdi Abdullahi Muhumed alias Kamil.
The matter came up before this court for directions on 26^th September 2024 and the court gave directions for service of the notice of motion upon the respondent and scheduled the matter for hearing on 6^th November 2024. However, on 2^nd of October 2024 the applicant presented a notice of motion under certificate of urgency dated 1^st October 2024 seeking to have the court to adopt and or give judicial approval to a consent dated 30^th September 2024 signed between the applicant’s counsel and the office of the Director of Public Prosecutions.
The terms of the consent read as follows:-
THAT the Applicant\'s Notice of Motion application dated 25th September, 2024 be allowed.
THAT the Applicant be admitted to reasonable cash bail or bond pending the hearing and determination of MAKADARA CRIMINAL CASE NO. E421 OF 2023; REPUBLIC -VERSUS- ABDI ABDULLAHI MUHUMED alias KAMIL before the trial court.
THAT there be no orders as to costs.
The consent was annexed to the affidavit in support of the motion dated 1^st October and appears to have been received in court on the 30^th September 2024.
Upon perusal of the new Notice of Motion this court certified the matter urgent and directed that the same be heard on 9^th October 2024.
On 9^th October Mr. Nthei Advocate appeared for the applicant whereas the respondent was represented by Mr. Chebii Prosecution Counsel.
The applicant’s counsel urged that the application dated 25^th September 2024 sought to have the ruling by the learned Honorable Magistrate delivered on 17^th September 2024 revised on the grounds set out on the face of the motion as well as the averments contained in the supporting affidavit.
Mr. Nthei Advocate argued before the court that the impugned ruling was the third by the learned Honorable magistrate denying the applicant bail.
Counsel pointed out to the court that the prosecution counsel in the lower court was not opposed to the applicant’s release on bail.
This was demonstrated by the fact that they had not filed an affidavit in reply to the application as well as the consent filed in court.
Mr. Chebii for the state confirmed that they were indeed not opposed to the applicant’s applications and that the consent was executed by the office of the DPP. He was also not averse to the consent being adopted and the applicant released on bail with suitable conditions.

ANALYSIS AND DETERMINATION.

In considering this application, this court wishes to remind both counsel for the applicant and the respondent that consents are generally alien to criminal law practice in an adversarial system. The court therefore treats the document annexed to the affidavit in support of the motion dated 1^st October and styled as a consent settling the applicant’s notice of motion dated 25^th September 2024 as a concession by the respondent that there exists no compelling reasons on their part to oppose the applicants release on bail pending trial.
Article 49 1 (h) of the Constitution of Kenya provides that an accused 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.
The duty to prove that there exist compelling reasons to deny bail is upon the prosecution thus the court is enjoined to make a determination as to whether to grant bail based on the information provided to it by the prosecution.
It cannot therefore be the business of the court to venture into finding reasons to deny bail as appears to have been the case in this matter.
The liberty of an individual should not be taken away whimsically or capriciously by the court, more so, when the prosecutorial agency does not provide any material to the court to justify the denial of bail.
The right to be released on bail is premised on the principle of the presumption of innocence and courts must guard against denying bail in circumstances that would lead one to conclude that the mind of the court is already formed regarding the guilt of an accused.
It is the cardinal duty of the court to give effect to the constitutional right to bail and avoid denying bail without good cause. The constitutional requirement of compelling reasons cannot be watered down to mean any reasons. The reasons must be forceful enough to persuade the court not to grant bail.
It therefore follows that before one is adjudged to be guilty of a charge, he must be let to enjoy his freedom.
Article 29 of the Constitution clearly spells out the right to freedom and security of the person. It states;-

Every person has the right to freedom and security of the
person, which includes the right not to be—

deprived of freedom arbitrarily or without just cause.

21.The article must be given its full effect and meaning by all trial courts in line with Article 22 of the constitution requiring courts to interpret the law in a manner that most favors the enforcement and enjoyment of fundamental freedoms.
22. In Republic v Danson Mgunya & another [2010] eKLR Ibrahim J ( as he then was) held that the principle that liberty of an accused person should be limited where there are compelling reasons not to be released on bail and it is the duty of the state to demonstrate the same and even then each case must be decided on its own circumstances, touch and context.
23. The decision by the learned Honorable judge emphasizes the critical role of the state in providing reasons for denial of bail. An extrapolation of the holding by the learned honourable judge would lead one to the conclusion that where the state does not oppose bail , the court should ordinarily grant.
24. It must be remembered that the predominant purpose of bail or bond is to ensure that an accused person attends court as and when he is required to do so.
25. It follows therefore that the state which bears the primary responsibility of ensuring that those who are suspected of having committed crimes are brought to justice, the state must ensure once persons are arraigned before court, they provide cogent reasons compelling enough to persuade the court not to grant bail.
26. The case before the court is one that is, to say the least, intriguing and disturbing in that the applicant in his affidavit sworn on 25^th September states at paragraph 11 that :-
“THAT the Prosecution therein did NOT object to the grant of bail but instead informed Court that it was amenable to have me released on bond as opposed to bail with bond terms that are commensurate to the offence. The Investigating Officer also confirmed that he equally had NO qualms with me being released on bond. I find no reason for the prosecution to oppose my request for bail even now.”
27. The averment quoted above has not been denied by the respondent by way of an affidavit. The concession filed in court on 30^th September 2024 executed by counsel for the applicant and the respondent in effect amounts to an admission of that fact.
28. The question that arises therefore is whether the decision by the learned Honorable magistrate to deny bail can pass the test of propriety, legality, regularity or correctness weighed against the decision of the court in the Danson Mgunya case (supra).
29. The court in its ruling appears to have placed reliance on the evidence of the PW1 & 2 in determining the application for bail. The court took into account what it said to be frustrations by the applicant and police officers in bringing the accused to court and the fact that emotions appeared to be high at the time two witnesses testified.
30. The court went on further to find that those two considerations were sufficient grounds to meet the test of compelling reasons.
31. The learned Honorable magistrate in arriving at the impugned decision noted at page 2 of the ruling that the respondent did not oppose the application for bail and that all that they requested for was that the accused executes a bond with a surety but no cash bail. However, the court does not appear to have given the submission by the respondent any consideration yet as earlier on stated the duty to avail compelling reasons for denial of bail to the court lies with the state but not the complainant.
32. In R v. Hurnam [2005] UKPC 49 the Privy Council case reaffirmed that pretrial detention should not be arbitrary and that the court must ensure that there are substantial grounds for detention. The judgment stressed the importance of proportionality and the need for judicial oversight to prevent unjustified deprivation of liberty before trial. It highlighted that bail is a fundamental right unless there are valid reasons to deny it.
33. The Constitution of Kenya Under Article 20 (1) provides that The Bill of Rights applies to all law and binds all State organs and all persons. The courts must therefore in the discharge of their duty give effect to the provisions of Article 49 1 (h) and must not depart therefrom on flimsy grounds.
34. The frustrations of a party by another in a Criminal trial or investigation cannot be a compelling reason to deny bail. Further, courts must also guard against being taken on an emotional journey by litigants when determining the rights of an accused person in a criminal trial.
35.The law and facts must remain the only considerations that courts take into account in arriving at the decision whether or not to grant bail.
36. It is a matter of common notoriety that a emotions run high in our criminal courts during trial. The judge or judicial officer must never allow themselves to be sucked into emotional tirades that parties often exchange during criminal trials.
37. During such moments the independence and impartiality of a judge must be maintained in order to ensure that the accused receives a fair trial and that justice to the victim is also not compromised.
38. The presumption of innocence requires that pretrial detention should be the exception and not the rule. The continued detention of an accused person must be based on evidence and legal reasoning. See R. Vs Mansfeld Justices, Ex parte Sharkey [1985] QB 613.
39. The learned Honorable magistrate in declining to grant bail appears to have been carried away by emotion and not evidence and legal reasoning. His decision therefore is to that extent irregular, incorrect and or illegal thus fit for revision.
40. The learned Honorable court ought to have ventured in to setting of conditions upon granting bail that would ensure that the predominant purpose of granting bail is met .
41. In Brioche Vs R ( SCA 20 of 2015 ) [2015] SCCA 46 ( December 2015) the Seychelles court of appeal considering the issue of pretrial detention held “pretrial detention , including detention through trial is an exceptional measure of the very last resort in a democratic society founded on the rule of law as the Republic of Seychelles is.”
42. The court was considering the matter of bail where the risk of flight was alleged on the basis of the appellant having left the jurisdiction of Seychelles and Madagascar when he was wanted over a drug related offence.
43. The court did not hesitate to grant bail despite the protestation by the state.
44. The applicant in this matter is also alleged according to the learned Honorable magistrate not to have been arraigned immediately before court although the reasons for the delay are not apparent on the record.
45. Further, the learned Honorable magistrate does not indicate what made the court not to grant bail even after receiving a pre-bail report the contents of which the learned Honorable magistrate omitted from the full text of his ruling.
46. In the circumstances, this court is inclined to grant bail to the applicant since no compelling reasons were presented before the learned Honorable magistrate to justify the denial of bail.
47. It should be noted that in explicable and unacceptable delay of the arrest and arraignment of an accused cannot be a compelling reason to deny bail especially where no tangible evidence is presented to the court as proof of flight by the accused person.
48. In conclusion, the applicant is hereby admitted to bail in the following terms:-

He shall be released on a bond of Ksh. 500,000 with a surety of a similar amount.
Both the accused person and the surety shall deposit with the court their passports if any
If the accused does not hold a passport or that his passport has expired the director of Immigration shall not issue a new passport or renew the expired passport to the accused during the trial until the same is heard and determined.
The applicant shall not leave his place residence and business in Eastleigh within Nairobi without the express authority of the investigating officer until the matter is heard and determined.
The applicant shall permanently be equipped with a mobile phone at his own cost the number of which he shall share with the investigating officer of this case and he shall ensure that the mobile phone is in good working condition and open for communication at all times
The applicant shall ensure that the mobile phone is available solely and exclusively for monitoring to enable the investigating officer to ascertain his movements and locations and if necessary, to direct him to be in attendance whenever required by the court.

49. The orders of this court shall be extracted and served by counsel for the applicant upon the Investigating officer and the Director if Immigration under return of service filed in Makadara Sexual Offence Case No. E421 of 2023.
50. It is so ordered.