Republic VS DENIS ABIOLA CHAYO ALIAS DENIS WAFGAN Republic VS DENIS ABIOLA CHAYO ALIAS DENIS WAFGAN

The applicant through Mr.ONDIEKI Advocate has applied for bail pending trial.
The main argument counsel for the applicant is that bail is unconstitutional right of every person charged with a Criminal Offence under Article 49 (1) (h) of the Constitution.
The applicant has urged the court to find that she is unlikely to abscond once released on bail and that she is ready to provide details of contact persons who will be ready to produce her whenever required to appear in court.
The applicant further urged that she has no intention to flee from jurisdiction of this court once admitted on bail.
It is further argued that his mother, brother and sister have been in Kenya for more than 22 years carrying on business thus according to counsel they are not likely to leave the country with the accused because of their business interest.
The applicant is said to be a Tanzanian National who resides in Nairobi at an identifiable location thus she is easy to locate once out on bail.
According to counsel the applicant has been doing business in Nairobi probably on a work permit.
Further, MR. ONDIEKI Advocate contends that the grounds of opposition raised by the prosecution in opposing bail do not meet the compelling reasons test thus the same should be rejected and the accused person granted bail.
In conclusion counsel prayed for reasonable bail terms for the applicant to be imposed to ensure that he is able to meet them and leave prison custody.
Ms. Njoroge prosecution counsel urged the court not to grant bail.
She relied on an affidavit sworn by No.112240 PC Kennedy Wainaina of DCI Starehe who is the investigating officer.
The two main grounds advanced by Ms.Njoroge are that the accused being a foreign national is a flight risk.
Counsel urged the court to consider that immediately after the commission of the offence the accused fled from Nairobi towards his home country and it was through the concerted effort of the investigating officer that he was traced to Illasit area at the Border of Tanzania with Kenya.
The defence having admitted that he is a foreigner according to MS. Njoroge , ought to have assisted this court with details of his fixed abode in Kenya.
The prosecution has maintained that at the time of the accused persons arrest his fixed abode could not be established.
The accused person is also said not to be gainfully employed thus his stay in Nairobi cannot be guaranteed.
Ms.Njoroge further took issue with the fact that the names of the alleged contacts were not named nor their contacts provided by the accused thus the court should decline the application.
Further, counsel for the prosecution urged that the immigration status of the accused remains unknown thus it would be risky to release him on bail.
The second reason advanced by the prosecution for denial of bail is that the accused person once released on bail he is likely to interfere with witnesses.
In support of that ground counsel urged that since disclosure has been done the accused person knows the persons who are likely to be called as witnesses against him thus, he likely to interfere with them.
Counsel went ahead and maintained one Christine Moraa Ondiek who was arrested with the deceased’s phone and was had a love affair with the accused.
The prosecution also states that there are some witnesses who are Tanzanian Nationals that the accused may interfere with.
Ms. Njoroge cited the case of Fredrick Ole Leliman & 4 Others [2016] eKLR as useful guidance to this court in considering bail.
The prosecution has strongly urged that the prosecution witness be heard while the accused person is in custody but should the court be minded to grant bail, the terms should be stringent according to MS. Njoroge.
In response to the prosecution’s submissions Mr.ONDIEKI for the accused submitted that the accused is not a flight risk. He indicated that the accused has a fixed abode and is willing to return for trial once he is released on Bail.
Counsel for the accused argued that the intended witnesses are actually relatives of the accused and they are willing to cooperate with the court during the hearing including in ensuring that he attends court upon release.
Counsel went further to submit that one of the witnesses is the mother of the accused who has indicated that she would be willing to avail the accused anytime the court requires him.
The accused is said to have a brother in Nairobi who would be willing to avail the accused whenever required.

ANALYSIS AND DETERMINATION.

The court has considered the rival submissions of counsel in this matter.
The reasons advanced by the prosecution for consideration in this application are that:-
the accused is a flight risk.
there is likelihood that the accused may interfere with the prosecution witnesses.
The principal consideration in granting bail is whether the accused person is unlikely to return to court upon release on bail for his trial.
The court in Danson Mgunya & Another Vs. Republic [2010] eKLR held that:-

“ In our Constitution it is stated expressly, positively and unequivocally that an arrested person has the right to be released on bond or bail on reasonable conditions pending a charge or trial. This means an accused must be released on bail or bail on reasonable conditions. The only exception or fetter to this right is that there must be “compelling reasons not to be released” . The court must therefore exercise its discretion with this in mind – “existence of compelling reasons.” I do hold that if the prosecutor objects to the release of the Accused from detention during the pendency of a trial, then at the first instance, the burden should be on the prosecution and not the accused person to prove or at least demonstrate the existence of the “compelling reasons”. This is the correct procedure as stated by Justice J. Katsala in the Malawi case when he stated:
“………………………………………………………………………… In my judgment the practice should rather 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 be deprived of his right to release from detention. The burden should be on the state and not on the accused. He who alleges must prove. This 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.” I am persuaded by the aforesaid interpretation and principles of law.

Article 49 (1) (h) requires that before a court makes an order declining to grant bail, it ought to be satisfied that there are compelling reasons to warrant the denial of bail.
Where the prosecution fails to present evidence to establish compelling reasons, the court should ordinarily be inclined to grant bail.
The right to bail and the right to a fair trial are like Siamese twins.
Once an accused person is granted bail, he continues to enjoy his freedom and is also able to prepare his defense from a comfortable environment away from the stressful prison environment.
The court ought therefore to be satisfied that the reasons advanced by the prosecution for denial of bail are compelling enough to justify the denial of bail.
The court should be able to reject any flimsy reasons and wish washy arguments by the prosecution in opposing bail in order to advance, uphold, promote and protect the right of an accused person to bail as envisaged under Articles 19,20, 21,22,23 and 49 of the Constitution.
It is against this background that I have examined the arguments for and against the grant of bail advanced by the prosecution as well as the defense.
In my view, the only ground that suffices as a compelling reason for denial of bail from the reasons advanced by the prosecution is the ground that the accused is a flight risk.
The affidavit by the investigating officer gives a detailed explanation of how through use of technology they were able to trace the missing phones of the deceased to Ilasit area at the Kenya Tanzanian border after they had discovered the body of the deceased in his house.
The officer narrates how they were able to track the phones and found one of the phones with one Christine Moraa Ondiek who informed them that she was given the phones by the accused as gift.
At paragraphs 9 ,10, and 11 of the affidavit the investigating officer explains in great detail how they were able to locate the deceased phones and went ahead to obtain evidence to show that the two Christine Moraa and the accused resided within Majengo line Saba at the time of the incident but moved to Tanzania immediately after the demise of the deceased.
No doubt from the affidavit one can clearly see that the issue of the accused person being a flight risk is not a matter that has been casually raised. The circumstances of the arrest point to a man who can be trusted by this court to return for the trial once released on bail.
I am satisfied that the conduct of the accused after the fact of the deceased’s death bears the hallmark of a man determined to cover his tracks after the event thus it is highly improbable that the accused will return to this court for trial once released on bail.
I have also taken note of the uncertainty of the accused person’s immigration status in the country and in my considered view it would be unwise to release the accused person on bail at this stage.
The investigating officer was emphatic that the accused person had no travel documentation thus he remains high risk and if released on bail there would be no guarantee that he would remain within the jurisdiction of this country.
As for the ground on interference with witnesses, I am not persuaded by the prosecution’s argument that since the accused knows the persons who are likely to testify in this case, he should be denied bail.
In my considered view to adopt such a position would be tantamount to suggesting that one can only get bail before disclosure of the material the prosecution wishes to rely on evidence.
That would be near suggesting that if an accused person desires to be granted bail, then there should be no disclosure of evidence or at least the identity of witnesses must be kept a secret.
In this court’s view, if the courts were to accept the argument that since disclosure of evidence has been done, then bail should not be granted, the effect of that would be to defeat the very much cherished inalienable right of an accused person to a fair trial under Article 50 of the Constitution.
Under Article 50 the accused is entitled to know who are his accusers and what it is that they intend to say about him in connection with the offence.
If for any reason the state wishes to keep the identity of its witnesses secret, then the witness Protection Act under Section 4 allows the prosecutor to seek protective orders from the High Court which may include the redaction, of witness statements to cover the identity of witnesses.
The prosecution did not seek such orders before disclosure thus it cannot turn around now and seek to use the fact of disclosure against the accused.
If the prosecution wishes to persuade the court that there is likelihood of interference with prosecution witness, there must be actual evidence of attempts to interfere or actual interference.

It cannot be on the basis suppositions. See REPUBLIC v JOKTAN MAYENDE & 3 others [2012] eKLR.

In the end the ground on the interference of witnesses fails.
The witnesses may be the accused persons’ relatives including his own girlfriend but that alone cannot be basis for denial of bail.
It would be dangerous to suggest that where relatives are involved as witnesses then bail should be automatically be denied. I say so because in matters that arise within a family setting all eye witnesses will most likely be relatives and to accept this as a criteria would mean that in all those cases the accused persons should not be granted bail.
That would run counter to the express provisions of Articles 19,20,23,49, 50 and 159 of the Constitution of Kenya.
The ideal position should be that courts should lean towards the granting of bail as opposed to its denial.
In the end I find and hold that considering the facts as presented by the investigating officer through his affidavit, the accused person in this matter is a flight risk and as such I decline to grant him bond at this stage.
To ensure that the accused is not prejudiced the prosecution is hereby ordered to ensure that at the time this matter comes up for hearing, they are ready to proceed without seeking adjournments without a proper cause being laid.
It is so ordered.