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JudgmentRepublic VS FRANCIS NDOLO SILAH5 min read

Republic VS FRANCIS NDOLO SILAH

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING ON BOND

  1. The accused   person FRANCIS    NDOLO   SILIA is charged    with murder   Contrary   to Section 203 as read with Section 204 of   the Penal Code. It is   alleged that on 12/11/2023 at around   7.00pm at    Kisaulu Village, Lumu Sublocation, Muani   Location, Mukaa Subcounty within Makueni County he with others not before the court, murdered Daniel Muimi Mwina. 
  2. The accused was presented before the Deputy Registrar on 25/3/2023   when the court was   on recess.  The Deputy Registrar, directed that the matter be fixed for plea taking on 3/4/2024.
  3. The record shows that he was examined   by the    psychiatrist   on 20/3/2024 and found to be fit to plead. 
  4. When plea was taken Ms.  Nyakibia for the state submitted that the state was seeking an order suspending the accused’s   bond   for 30 days.  The reason given was that there is a state witness said to be the only eye witness   to the alleged offence whose life was feared to be in danger, and whose safety would be further compromised if the accused person was released. That the state needs these 30 days to engage with other agencies to provide better security for this witness who is already under police protection but   the ODPP is of the view that that    in itself   is not sufficient. MS. Nyakibia made it clear that the state was not opposed to bond -  they just want the   accused to remain in remand custody for 14 to 30 days while    they    engaged with the WPA for purposes of protecting their witness- 
  5. The court was told that these submissions are in support of the   affidavit sworn by the investigating officer. 
  6. The    application was vehemently opposed   by Mr. Mongeri counsel for the accused person – on the ground that it had no basis.  He submitted that the e prosecution had first presented the accused before the subordinate court      via a Miscellaneous Application seeking to hold the accused then a suspect for 14 days to enable completion of investigations; that the subordinate     court had declined   and granted   them 5 days – that time the accused had spent in custody was sufficient for the state to make arrangements for the protection of their key witness. That the alleged   endangerment    to the alleged eye witness had not been   established as the eye witness had not sworn any affidavit   to demonstrate   the alleged fear for their   safety -  that the defence was ready to take the evidence of that witness immediately so that the witness   could   be free.   That in any event that witness was unknown to the defence. 
  7. The court was   referred   to   two authorities on the issue of bond. The court is urged to consider the accused’s right to be presumed innocent
  8. The only issue for determination is whether this application to suspend the accused’s bond is tenable.
  9. The prosecution seeks for this court to grant bond then suspend it.
  10. This court is alive to the value of prosecution witnesses to the integrity of the criminal justice system, access to justice for victims and the rule of law.
  11. Witnesses take risks in coming forward to testify for no other reason other than the respect for the rule of law and justice. It is proper for the ODPP to be concerned for the safety of the witnesses and to bring that to the attention of the court. However, it would have made sense that this application would have been accompanied by the application asking Witness Protection Agency to offer that protection. I think that is what it means to balance the rights of the accused and that of the victims of crime (I this case I would consider the eye witness whose life is at risk because of what they are said to have seen to be a victim of that crime).
  12. It is not ok to me that the state is coming this late time of the day seeking to have the accused held in custody while they “engage” the Witness Protection Act WPA; seeking the protection of a witness through the detention of an accused person in a charge sheet that says he was with others not before the court, without any evidence to show that there have been threats to the said witness -  by the accused   or his proxies, and without an application seeking that the relevant authorities provide the requisite protection.
  13. The   Witness Protection Act allows the prosecution to seek orders for this protection and they ought to have done so even at the time they brought the accused for plea if    there was such a serious threat, there ought to have been an application for the protection of the witness
  14.   More importantly I find it   unreasonable that the state is tying the safety of their    key witness to one person, the accused. person
  15. The offence   was committed    in November, 2023 -   5 months ago.  Nothing has been placed   before me to show that in the intervening period   -  other than the   fear that something could happen to the witness -  that there has been any risk of  anything against the witness. 
  16. The state has    put   the witness    under police   protection.  The court has not been told that the accused has   the capacity   to infiltrate this police    protection.
  17.   The Pre Bail Report has been filed this morning. While the key issue was the protection of one key witness, the DCI is saying in the report that the accused has the potential to interfere with the witnesses who are well known to him. There is nothing specific in the report about the accused being a threat to the life of the one witness for whom this application was made. I can only deduce that that the DCI considers that threat to have passed or they have already dealt with their concerns.
  18. I have taken into consideration the fears expressed by the family of the victim. The deceased is said to have been a brother of the father in law of the accused, that is, an uncle to the wife of the accused. He was family.
  19. The fears of interference can be dealt with by way of conditional bail to the accused person not to contact that family in any manner or form.
  20. Other than that the report states that the accused has a fixed abode, is not a flight risk, his family are ready to stand surety for him, and to ensure he comes to court, and his advocate has committed that he will abide by the orders of this court.

Having considered the submissions by counsel, guided by Article 49(1) (h) of the Constitution, relying on the PBR, and aware that the ODPP has recourse in the Witness Protection Act for the protection of any endangered witness I make the following orders:

The application    to suspend the bond for the accused is declined.

  1. The    accused is admitted to bond of Ksh.  500,000 with a surety of similar    amount. 
  2. The bond is on the condition that the accused shall not go anywhere near any of the prosecution witnesses and shall not contact any of them in any manner or form. 
  3. The prosecution is at liberty to seek   review   of these   bond terms   should    they have reason to do so.
  4. Right of Appeal 14 days

Dated, signed and delivered this 12th day of April, 2024.


    Republic VS FRANCIS NDOLO SILAH Republic VS FRANCIS NDOLO SILAH