v (OF THE ORDER IN SHANZU CR. E 715 OF 2024 ( R. O. MBOGO SRM) DATED 19TH AUGUST 2024
1.This ruling relates to the Application dated 21st August 2024. It seeks that the court reviews the order in Shanzu Cr number E715 of 2024 and grant the Applicant bond or bail pending the hearing and determination of the case against her. The Application is based on the grounds on its face and the Affidavit sworn by Mr Kariuki Mburu Advocate.
2. The state did not oppose the application .
3. I called for and I have perused the Lower court record to ascertain the legality , propriety and regularity of the proceedings.
4.Its noted that the trial court did not deny bond terms. What they did, was ask for a pre bail report. The complaint by the Applicant is that this report is meant to be availed on 10th September 2024 by which time she will have been in custody for well over 20 days. It was submitted that this is unusual and excessively harsh for a minor offence like Assault.
5.Analysis:
.The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’).
6.Article 49(1)(h) of the Constitution states as follows: -\\\"An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released.\\\"
7.Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align theCPC with the Constitution. It provides that: -\\\"(1)Subject to Article 49 (1) (h) of the constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all relevant circumstances and in particular –
a)the nature of seriousness of the offence;
b)the character, antecedents, associations and community ties of the accused person;
c)the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; and) the strength of the evidence of his having committed the office
.(2)A person who is arrested or charged with any offence shall be granted bail unless the Court is satisfied that the person-a)has previously been granted bail and as failed to surrender to custody and that if released on bail (whether or not subject to conditions), it is likely that he would fail to surrender to custody;
b)Should be kept in custody for his own protection.\\\"
8.The rationale behind bail or bond in Kenya is premised on the constitutional imperative under Article 50(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved.
9..In bail or bond applications, therefore, the primary consideration must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. Ibrahim, J (as he then was) in Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that; \\\"The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.\\\"
10.Therefore, in granting bail or bond, the trial court is called upon to exercise its discretion and, if there are no compelling reasons to deny an accused bail or bond, the trial court should exercise its discretion in favour of the accused.
11.Both the Constitution and the CPC do not define what ‘compelling reasons’ are.
12.But what does the term ‘compelling reasons’ mean?
.The term has been used in other jurisdictions to mean ‘exceptional circumstances’ or ‘unusual’ and ‘extraordinary circumstances’. Having gone through various statutes, scholarly writings and decisions within and outside our jurisdiction, it appears that the term ‘compelling reasons’ (or as the case may be) is not settled and may include a rubric of circumstances.
13.The 10th Edition, Black’s Law Dictionary defines ‘extraordinary’ as “beyond what is usual, customary, regular or common”. It also defines ‘a circumstance’ as “an accompanying or accessory fact, event or condition such as a piece of evidence that indicates the probability of an event”. The dictionary goes ahead to define “extraordinary circumstance” as “a highly unusual set of facts that are not commonly associated with a particular thing or event.”
13.In Kenya, Courts have, as well, dealt with the issue. In Republic v Joktan Mayende & 3 Others [2012] eKLR, Mohamed Abdurrahman Said & Another v Republic [2012] eKLR, Wilson Thirimba v DPP [2012] eKLR, among others, the Courts reverted to the meaning of the word ‘compelling’ as defined in the Concise Oxford Dictionary, 9th Edition which is defined as ‘rousing, strong, interest, attention, conviction or admiration’.
14.Admitting the challenge in the term ‘exceptional circumstances’, the Constitutional Court of South Africa in Liesching and Others v S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC) (29 August 2018) quoted with approval the definition in S v Petersen 2008 (2) SACR 355 (C) and had this to say: -\\\"Meaning of “exceptional circumstances”(39)The phrase “exceptional circumstances” is not defined in the Superior Courts Act. Although guidance on the meaning of the term may be sought from case law, our courts have shown a reluctance to lay down a general rule. This is because the phrase is sufficiently flexible to be considered on a case-by-case basis, since circumstances that may be regarded as “ordinary” in one case may be treated as “exceptional” in another. For instance, in Petersen a Full Court of the High Court of South Africa, Western Cape Division, Cape Town (Western Cape High Court) observed in relation to an application for bail under section 60(11) (a) of the Criminal Procedure Act:\\\"
15.On the meaning and interpretation of ‘exceptional circumstances’ in this context there have been wide-ranging opinions, from which it appears that it may be unwise to attempt a definition of this concept. Generally speaking ‘exceptional’ is indicative of something unusual, extraordinary, remarkable, peculiar or simply different. There are, of course, varying degrees of exceptionality, unusualness, extraordinariness, remarkableness, peculiarity or difference. This depends on their context and on the particular circumstances of the case under consideration. In the context of section 60(11) (a) the exceptionality of the circumstances must be such as to persuade a court that it would be in the interests of justice to order the release of the accused person. This may, of course, mean different things to different people, so that allowance should be made for certain flexibility in the judicial approach to the question. In essence the court will be exercising a value judgment in accordance with all the relevant facts and circumstances, and with reference to all applicable criteria.\\\"
16.Defining the term further, the South African Court in S v Bruintjies 2003 (2) SACR 575 (SCA) had the following to say: -\\\"…. What is required is that the court consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release. What is exceptional cannot be defined in isolation from the relevant fact.… If upon an overall assessment, the court is satisfied that circumstances sufficiently out of the ordinary to be deemed exceptional have been established by the appellant and which, consistent with the interests of justice, warrant his release, the appellant must be granted bail.\\\"
17.Still on the South Africa jurisprudence, in S v Rudolph 2010 (1) SACR 262 (SCA) at 266 g-h, the Court dealt with what exceptional circumstance are and reiterated that the Applicant in bail application must, on a balance of probability, demonstrate that “exceptional circumstances” in his or her case, indeed, do exist and that they “in the interests of justice permit his release”. This, according to the Court, involves the balancing” between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown by the accused to exist”.
18.And, in Antonio Jacobie Snyders v The State (A455/2015) 2015 ZAGPPHC 618, the High Court in South Africa dismissed an appeal against denial of bail on the basis of the fact that the community was up in arms as it found it necessary to voice its opinion regarding the conduct of the Appellant. The Appellant’s concessions relating to his safety meant that it would not be wise to release the Appellant on bail. Indeed, the Appellant conceded that the community would not accept him back with open arms and that there existed some enmity between him and the community.
19.Given the amorphous nature of the term ‘compelling reasons’ or ‘exceptional circumstances’, a Court while exercising its discretion in dealing with a bail and bond application must ‘consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release’ and must also balance “between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown….”. In Kenya those ‘compelling reasons’ or ‘exceptional circumstances’ must be demonstrated by the prosecution.
20.In delineating the parameters of ‘compelling reasons’ and ‘exceptional circumstances’ and remaining alive to the provisions of Section 123(A) of the CPC, the High Court in Republic v Pascal Ochieng Lawrence [2014] eKLR stated as under: -\\\"…. It is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the State. The Court in exercising its discretion as to whether or not to grant bond is, however, to be guided by the following parameters: -
• the seriousness of the offence although this carried greater weight under the old constitutional dispensation;
• the weight of the evidence so far adduced if the case is partly heard;
• the possibility of the accused interfering with witnesses;
• the safety and protection of the accused once he/she is released on bail/bond;
• whether the accused will turn up for trial;
• Whether the release of the accused will jeopardize the security of the community.”
21.Further, the High Court in Republic v Joshua Mueke Mutunga & 3 others [2020] eKLR in determining the criteria to be applied on whether to grant bail or bond relied on the decision by the Supreme Court of Nigeria in Alhaji Muiahid Dukubo-Asari v Federal Republic of Nigeria, SC 20AI /2006 which set out a similar criteria on the granting of bail by holding as follows: -\\\"…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 nature of the charges;
ii. The strength of the evidence which supports the charge
;iii. The gravity of the punishment in the event of conviction
;iv. The previous criminal record of the accused, if any
;v .The probability that the accused may not surrender himself for trial
;vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
vii. The likelihood of further charges being brought against the accused
;viii. The probability of guilty;
ix. Detention for the protection of the accused;
x. The necessity to procure medical or social report pending final disposal of the case”. [Emphasis added]\\\"
22.In dealing with this matter, this Court should not lose sight of the fact that the right to bail or bond is one of those rights under the Bill of Rights whose enforcement is aimed at preserving the dignity of individuals and communities, the promotion of social justice and the realization of the potential of all human beings. The court is also minded that in granting bail, the terms should not be such as the terms end up being a denial of the same. Each case should also be treated as per their peculiar circumstances.
23. In this particular case the court notes that there was no proper objection to the grant of bond or bail to the Applicant. There is no affidavit sworn by the investigating officer setting out any compelling reason why bond should be denied. The record shows that Ms Mazrui the court prosecutor simply stated that ‘the accused works in the same school where the accused (sic) works.We pray for a pre bail report. We are also not ready for pre trial.
24.Having carefully considered this matter and in light of the in-depth analysis of the Constitution, the law and various decisions, this Court finds in light of Article 49(1)(h) of the Constitution and Section 123A(2)(b) of the CPC, there is no compelling reason in this case such that admitting the accused to bail or bond at this point in time will be prejudicial to the trial .Again the compelling reason for denying bail is the possibility of the Accused absconding and this has not been proved.
25 I find that the time given for preparation of the report was too long and amounts to constructive denial of bond on a simple case of assault. The court noted that the accused person was in gainful employment and may loose her job due to the long incarceration. This is a matter that even ought to be referred to ADR so as to resolve the dispute between two co workers. It is on the basis of the above reasons and in light of the unique circumstances of this case that this Court allows the application.
26.Consequently, the following orders do hereby issue: -
a. The application seeking that the Applicant be admitted to lenient bond and bail terms pending trial is hereby allowed.
.b. The Applicant may be released on a cash bail of Ksh 30,000 with 1 contact person who should provide their identity card and contacts
Those are the orders of this Court.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 23rd DAY OF AUGUST 2024.
WENDY KAGENDO
JUDGE
Ruling delivered virtually and in the presence of: -
MR Kariuki Learned Counsel for the Accused.
MS MAINA, Learned Senior Assistant Director of Public Prosecutions instructed by the Office of the Director of Public Prosecutions for the
Respondent
MS BEBORA . COURT ASSISTANT.
1.This ruling relates to the Application dated 21st August 2024. It seeks that the court reviews the order in Shanzu Cr number E715 of 2024 and grant the Applicant bond or bail pending the hearing and determination of the case against her. The Application is based on the grounds on its face and the Affidavit sworn by Mr Kariuki Mburu Advocate.
2. The state did not oppose the application .
3. I called for and I have perused the Lower court record to ascertain the legality , propriety and regularity of the proceedings.
4.Its noted that the trial court did not deny bond terms. What they did, was ask for a pre bail report. The complaint by the Applicant is that this report is meant to be availed on 10th September 2024 by which time she will have been in custody for well over 20 days. It was submitted that this is unusual and excessively harsh for a minor offence like Assault.
5.Analysis:
.The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’).
6.Article 49(1)(h) of the Constitution states as follows: -\\\"An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released.\\\"
7.Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align theCPC with the Constitution. It provides that: -\\\"(1)Subject to Article 49 (1) (h) of the constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all relevant circumstances and in particular –
a)the nature of seriousness of the offence;
b)the character, antecedents, associations and community ties of the accused person;
c)the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; and) the strength of the evidence of his having committed the office
.(2)A person who is arrested or charged with any offence shall be granted bail unless the Court is satisfied that the person-a)has previously been granted bail and as failed to surrender to custody and that if released on bail (whether or not subject to conditions), it is likely that he would fail to surrender to custody;
b)Should be kept in custody for his own protection.\\\"
8.The rationale behind bail or bond in Kenya is premised on the constitutional imperative under Article 50(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved.
9..In bail or bond applications, therefore, the primary consideration must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. Ibrahim, J (as he then was) in Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that; \\\"The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.\\\"
10.Therefore, in granting bail or bond, the trial court is called upon to exercise its discretion and, if there are no compelling reasons to deny an accused bail or bond, the trial court should exercise its discretion in favour of the accused.
11.Both the Constitution and the CPC do not define what ‘compelling reasons’ are.
12.But what does the term ‘compelling reasons’ mean?
.The term has been used in other jurisdictions to mean ‘exceptional circumstances’ or ‘unusual’ and ‘extraordinary circumstances’. Having gone through various statutes, scholarly writings and decisions within and outside our jurisdiction, it appears that the term ‘compelling reasons’ (or as the case may be) is not settled and may include a rubric of circumstances.
13.The 10th Edition, Black’s Law Dictionary defines ‘extraordinary’ as “beyond what is usual, customary, regular or common”. It also defines ‘a circumstance’ as “an accompanying or accessory fact, event or condition such as a piece of evidence that indicates the probability of an event”. The dictionary goes ahead to define “extraordinary circumstance” as “a highly unusual set of facts that are not commonly associated with a particular thing or event.”
13.In Kenya, Courts have, as well, dealt with the issue. In Republic v Joktan Mayende & 3 Others [2012] eKLR, Mohamed Abdurrahman Said & Another v Republic [2012] eKLR, Wilson Thirimba v DPP [2012] eKLR, among others, the Courts reverted to the meaning of the word ‘compelling’ as defined in the Concise Oxford Dictionary, 9th Edition which is defined as ‘rousing, strong, interest, attention, conviction or admiration’.
14.Admitting the challenge in the term ‘exceptional circumstances’, the Constitutional Court of South Africa in Liesching and Others v S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC) (29 August 2018) quoted with approval the definition in S v Petersen 2008 (2) SACR 355 (C) and had this to say: -\\\"Meaning of “exceptional circumstances”(39)The phrase “exceptional circumstances” is not defined in the Superior Courts Act. Although guidance on the meaning of the term may be sought from case law, our courts have shown a reluctance to lay down a general rule. This is because the phrase is sufficiently flexible to be considered on a case-by-case basis, since circumstances that may be regarded as “ordinary” in one case may be treated as “exceptional” in another. For instance, in Petersen a Full Court of the High Court of South Africa, Western Cape Division, Cape Town (Western Cape High Court) observed in relation to an application for bail under section 60(11) (a) of the Criminal Procedure Act:\\\"
15.On the meaning and interpretation of ‘exceptional circumstances’ in this context there have been wide-ranging opinions, from which it appears that it may be unwise to attempt a definition of this concept. Generally speaking ‘exceptional’ is indicative of something unusual, extraordinary, remarkable, peculiar or simply different. There are, of course, varying degrees of exceptionality, unusualness, extraordinariness, remarkableness, peculiarity or difference. This depends on their context and on the particular circumstances of the case under consideration. In the context of section 60(11) (a) the exceptionality of the circumstances must be such as to persuade a court that it would be in the interests of justice to order the release of the accused person. This may, of course, mean different things to different people, so that allowance should be made for certain flexibility in the judicial approach to the question. In essence the court will be exercising a value judgment in accordance with all the relevant facts and circumstances, and with reference to all applicable criteria.\\\"
16.Defining the term further, the South African Court in S v Bruintjies 2003 (2) SACR 575 (SCA) had the following to say: -\\\"…. What is required is that the court consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release. What is exceptional cannot be defined in isolation from the relevant fact.… If upon an overall assessment, the court is satisfied that circumstances sufficiently out of the ordinary to be deemed exceptional have been established by the appellant and which, consistent with the interests of justice, warrant his release, the appellant must be granted bail.\\\"
17.Still on the South Africa jurisprudence, in S v Rudolph 2010 (1) SACR 262 (SCA) at 266 g-h, the Court dealt with what exceptional circumstance are and reiterated that the Applicant in bail application must, on a balance of probability, demonstrate that “exceptional circumstances” in his or her case, indeed, do exist and that they “in the interests of justice permit his release”. This, according to the Court, involves the balancing” between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown by the accused to exist”.
18.And, in Antonio Jacobie Snyders v The State (A455/2015) 2015 ZAGPPHC 618, the High Court in South Africa dismissed an appeal against denial of bail on the basis of the fact that the community was up in arms as it found it necessary to voice its opinion regarding the conduct of the Appellant. The Appellant’s concessions relating to his safety meant that it would not be wise to release the Appellant on bail. Indeed, the Appellant conceded that the community would not accept him back with open arms and that there existed some enmity between him and the community.
19.Given the amorphous nature of the term ‘compelling reasons’ or ‘exceptional circumstances’, a Court while exercising its discretion in dealing with a bail and bond application must ‘consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release’ and must also balance “between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown….”. In Kenya those ‘compelling reasons’ or ‘exceptional circumstances’ must be demonstrated by the prosecution.
20.In delineating the parameters of ‘compelling reasons’ and ‘exceptional circumstances’ and remaining alive to the provisions of Section 123(A) of the CPC, the High Court in Republic v Pascal Ochieng Lawrence [2014] eKLR stated as under: -\\\"…. It is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the State. The Court in exercising its discretion as to whether or not to grant bond is, however, to be guided by the following parameters: -
• the seriousness of the offence although this carried greater weight under the old constitutional dispensation;
• the weight of the evidence so far adduced if the case is partly heard;
• the possibility of the accused interfering with witnesses;
• the safety and protection of the accused once he/she is released on bail/bond;
• whether the accused will turn up for trial;
• Whether the release of the accused will jeopardize the security of the community.”
21.Further, the High Court in Republic v Joshua Mueke Mutunga & 3 others [2020] eKLR in determining the criteria to be applied on whether to grant bail or bond relied on the decision by the Supreme Court of Nigeria in Alhaji Muiahid Dukubo-Asari v Federal Republic of Nigeria, SC 20AI /2006 which set out a similar criteria on the granting of bail by holding as follows: -\\\"…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 nature of the charges;
ii. The strength of the evidence which supports the charge
;iii. The gravity of the punishment in the event of conviction
;iv. The previous criminal record of the accused, if any
;v .The probability that the accused may not surrender himself for trial
;vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
vii. The likelihood of further charges being brought against the accused
;viii. The probability of guilty;
ix. Detention for the protection of the accused;
x. The necessity to procure medical or social report pending final disposal of the case”. [Emphasis added]\\\"
22.In dealing with this matter, this Court should not lose sight of the fact that the right to bail or bond is one of those rights under the Bill of Rights whose enforcement is aimed at preserving the dignity of individuals and communities, the promotion of social justice and the realization of the potential of all human beings. The court is also minded that in granting bail, the terms should not be such as the terms end up being a denial of the same. Each case should also be treated as per their peculiar circumstances.
23. In this particular case the court notes that there was no proper objection to the grant of bond or bail to the Applicant. There is no affidavit sworn by the investigating officer setting out any compelling reason why bond should be denied. The record shows that Ms Mazrui the court prosecutor simply stated that ‘the accused works in the same school where the accused (sic) works.We pray for a pre bail report. We are also not ready for pre trial.
24.Having carefully considered this matter and in light of the in-depth analysis of the Constitution, the law and various decisions, this Court finds in light of Article 49(1)(h) of the Constitution and Section 123A(2)(b) of the CPC, there is no compelling reason in this case such that admitting the accused to bail or bond at this point in time will be prejudicial to the trial .Again the compelling reason for denying bail is the possibility of the Accused absconding and this has not been proved.
25 I find that the time given for preparation of the report was too long and amounts to constructive denial of bond on a simple case of assault. The court noted that the accused person was in gainful employment and may loose her job due to the long incarceration. This is a matter that even ought to be referred to ADR so as to resolve the dispute between two co workers. It is on the basis of the above reasons and in light of the unique circumstances of this case that this Court allows the application.
26.Consequently, the following orders do hereby issue: -
a. The application seeking that the Applicant be admitted to lenient bond and bail terms pending trial is hereby allowed.
.b. The Applicant may be released on a cash bail of Ksh 30,000 with 1 contact person who should provide their identity card and contacts
Those are the orders of this Court.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 23rd DAY OF AUGUST 2024.
WENDY KAGENDO
JUDGE
Ruling delivered virtually and in the presence of: -
MR Kariuki Learned Counsel for the Accused.
MS MAINA, Learned Senior Assistant Director of Public Prosecutions instructed by the Office of the Director of Public Prosecutions for the
Respondent
MS BEBORA . COURT ASSISTANT.