Republic VS CAREN OPATA

2.    The application was   vehemently opposed.
3.    Counsel urged this Court not to admit
4.     Learned Prosecutor Mr  Mbonzo argued that releasing the accused on bail or bond is detrimental to her security. The area the accused is from is known for its retaliation tendency.
5.    It is on the basis of the foregoing that this Court is called upon to determine the bail and bond application.
Analysis
6.    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’).
7.    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.
8.    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.\"
9.    Section 123(A) of the CPC sets out exceptions to the right to bail or bond and 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
d)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.\"
10.    The primary consideration in bail or bond applications must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated.
11.    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.”
12.    The prosecution’s contention in this matter is that the Accused person’s security is at a risk due to the tension that is already witnessed and the retaliation tendency in the area.
13.     Having said as much, this Court now turns to a consideration of the grounds tendered in opposition to the application.
14.    On the ground that the releasing the accused persons being detrimental to their security, the probation report categorically states that the community is hostile. However, the security of an individual starts with the person and this case the accused person. The said accused persons have not raised an issue as to their security being threatened by the public or the victim’s family.
15.    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  to deny the accused bail or bond.
16.    It is on the basis of the above sole reason and in light of the unique circumstances of this case that this Court allows this application.
17.    Consequently, the following orders do hereby issue: -
a)    The application seeking that the accused be admitted to bond and bail pending trial is hereby allowed.
b)    The accused person is admitted to a bond of Kshs. 500,000/- and a surely of a similar amount.
Those are the orders of this Court.
DELIVERED, SIGNED AND DATED AT KAKAMEGA THIS 23RD DAY OF SEPTEMBER, 2024.