Republic VS IAN ROTICH Republic VS IAN ROTICH

The accused person in this matter has applied to be released on bail pending the hearing of the murder case against him. The accused is charged with the murder of Kelvin Ndung’u Waweru on 31^st August 2024 at Mirema Drive Kasarani Subcounty Nairobi County. The application was opposed by the prosecution who argued that there are compelling reasons to deny the accused person bail.

APPLICANT’S CASE

Ms NYAMANGA Advocate appearing for the accused pleaded with the court to have the accused person released on bail citing the provisions of Article 49(1)(h) of the Constitution and Section 123 of the CPC.
The accused person’s counsel contended that Bail is a right and should not be denied without a good cause. According to counsel the prosecution had not presented any compelling reasons to warrant the denial of bail. The affidavit by the state is deficient of necessary grounds and material to establish any compelling reasons.
On the issue of the accused being a flight risk, the accused person has maintained that he is a flight risk and has no capacity to interfere with the witnesses.
The accused is said to be a student at KU and has no intention to take flight. Counsel further informed the court that the accused is in his fourth year of study at the University. In support of that he has attached a copy of the student identity card and student statement from the University for the academic year 2019/2020.
The accused has also provided a tenancy agreement as prove of his place of abode to demonstrate that he is not a flight risk and would be able to return for trial should the court grant him bail.
The accused further argued that though the nature of offence is a factor, he should be presumed innocent until proven guilty in line with Article 50 of the Constitution.

RESPONDENTS CASE

MS. NJOROGE prosecution counsel appeared for the state and opposed the release of the accused on bail. The prosecutor argued that though bail is a constitutional right the same is not absolute and where compelling reasons are established the court should not be inclined to grant bail to the accused person.
The prosecution relied on an Affidavit sworn by CPL Joseph Njiru of DCI Kasarani on 11/11/2024 and in the said affidavit at Paragraph 8 the officer deposes that the accused is a flight risk.
The incident culminating into the deceased’s death happened on 31/5/2024 and accused went into hiding. The accused was arrested on 12/9/2024 in an AirBnb in Ruiru town.
He did not disclose place of Abode to the police. He was basically on the run.
The prosecution argued that that accused does not have a fixed abode.
The tenancy agreement according to the prosecution has since expired and there is no guarantee that the accused would be residing in the same place.
The prosecution informed this court that if the accused person is released on bail, it would be difficult to trace him.
The other compelling reason according to the prosecution is witness interference. The key witnesses in this case are his close friends whom he was with at the time of the commission of the offence at the club. Counsel argued that he is likely to influence the witnesses not to testify once released on bail.
The prosecution submitted that after hitting the deceased with a stone, the accused disappeared to a different club with the witnesses. A fact that shows he has influence over the witnesses. It is for this reason that the prosecution maintains that he might influence or intimidate them.
The contention that the accused was about to sit exams was not proved according to the prosecution so as to have the court consider releasing him back to class.
The prosecution thus urged this court to dismiss the application and decline to grant bail.
The prosecution further submitted that in the unlikely event that the court was to grant bail, the court should be minded to impose stringent bond terms.
The court was urged not to grant a cash bail for that would be an incentive be an incentive to abscond.
The prosecutor urged that the court grants a bond with a surety.
The accused should also be required to deposit his Passport if he holds one.
The court was further urged to impose a condition that should the accused desires to travel out of the jurisdiction of this court he should disclose and seek leave of the court.
In a quick rejoinder Ms Nyamanga argued that the accused has a fixed abode and that at the time of arrest he was in his house and that the lease was renewed.
On witness interference counsel argued that that was mere apprehension and if at all there was such danger the court could as well give measures to prevent that.
The accused was said to have been in custody since 13/9/2024 and that he was prepared to get stringent terms.
He offered to be reporting once every month.

ANALYSIS AND DETERMINATION

The right to bail is a constitutional right available to all persons irrespective of the offence that one is charged with. Article 49 of the Constitution on the right to bail does not discriminate on account of the offence that an accused person is charged with.
The prosecution bears the burden of establishing that there are compelling reasons to for the court to deny bail. The standard of proof being on a balance of probabilities.
The allegation that one is likely to interfere with prosecution witnesses is a very serious allegation that the state should not casually raise with tangible evidence of either direct or indirect interference or attempt to interfere with witnesses. See Jackton Mayende v Rep {2022} KEHC 18048 (KLR)
It is not enough to allege that since witnesses are close friends to an accused person, they would be interfered with if the accused is released on bail. The prosecution should endeavor to substantiate the basis upon which such an assumption rest. The fact that persons who allegedly witnessed an offence being committed are friends or are known to the accused person should not by itself make it a good reason to deny bail.
It is a common occurrence in our courts for friends to testify against one another or even close relatives who happen to be witnesses.
The position propounded by the prosecution if accepted as a compelling reason would see all accused persons charged with offences occurring within family set ups or an institution detained throughout their trial not because of anything else but for the simple reason that they are known to the witnesses. That would be a major claw back on the strides made in the promotion of the right to liberty.
The compelling reasons advanced by the prosecution must be forceful enough to persuade the court that accused person is undeserving to be admitted to bail.
The principal consideration in granting bail is whether or not the accused person would return for his trial once released on bail. See Danson Mgunya and Another Vs Republic (2010) eKLR. The rest of the considerations such as the strength of the prosecutions case or the seriousness of the offence are secondary since the primary purpose is to ensure that the accused is available for his trial as and when required to do so.
The offence of murder is serious no doubt but the Constitution has declared all offences bailable a departure from the past where murder, robbery with violence and treason were unbailable.
The Witness Protection Act was enacted to address the security concerns of witnesses. In cases where there is a real danger of interference with witnesses, the prosecution has not hesitated to move the courts for protective orders under Section 4 of the Act. In this case that has not happened thus this court agrees with the submission by counsel for the accused that the fear of interference with witnesses by the prosecution is unfounded and is calculated at denying the accused his freedom yet he remains innocent until proven guilty.
The other issue raised by the prosecution is that the accused is a flight risk. The prosecution has not demonstrated through cogent evidence that the accused persons is likely to abscond. The lease agreement though said to have expired the defense counsel has informed this court that it was renewed thus the accused has a fixed abode.
In the end this court finds that the prosecution has failed to establish that there exist compelling reasons in the matter for the court to deny bail. The accused person is hereby admitted to bail in the following terms;-
A bond of Ksh.1,000,000 plus one surety of similar amount.
The accused shall provide contacts of two persons who shall be willing to avail him as and when required to appear in court
The accused person shall provide his permanent place of abode details of which shall include the location of the house he shall occupy and the details of the owner
The accused person shall not move out of the jurisdiction of the court without the leave of this court.
The accused person shall provide details of the mobile phone he shall be using and shall ensure that the mobile phone remains open at all times.
The surety shall provide details of his mobile phone and residence.
The accused shall not contact any of the witnesses that the prosecution intends to call and any attempts to reach anyone of them shall lead to the immediate cancellation of the bond.
If the accused person intends to reach the victim’s family for any alternative justice process or plea bargain that shall strictly be done formally through counsel for the accused and not directly to the family.
It is so ordered.