Preliminaries
1. This Honourable Court is called upon to determine the whether the Applicant should be released on bail/bond pending the hearing and determination of this trial. The Applicant pleaded not guilty resulting to Pre-bail order. The Applicant was charged with Murder contrary to section 203 as read with section 204 of the penal code Cap 63 Laws of Kenya.
2. The particulars of the offence being that on 8th and 9th September 2023 at Mirironi village, Jomvu Sub County within Mombasa County, jointly with others not before Court murdered Paris Nzaka Ngao Alias Mzee Mkorofi and on 8th and 9th September 2023 at Mirironi village, Jomvu Sub County within Mombasa County, jointly with others not before Court murdered Paris Mishi Makau Tsama.
3. On 5th September, 2024 the Applicant pleaded not guilty on both counts. The applicant is currently remanded at Shimo La Tewa Maximum Prison.
Bail Information Report
4. In the report dated 19th September, 2024 by Stephen Muthoka, it was contended that on the victim(s)/ complainant concern; the primary victim in this matter was deceased. His secondary victims were not traced as the contacts were unreached. Efforts were extended through the assistant chief and the village elder Hisiriwani village which similarly bore no fruits and therefore as at the time of filing this report, the victim's sentiments had not been recorded.
5. Accordingly, the Applicant was described as a family man with parental responsibilities as indicated above. His place of abode and his known source of livelihood here in Mombasa County was confirmed. In the event he is admitted on bond awaiting full trial, he undertakes to continue residing in Mombasa where his family and other relatives live.
6. The accused person had no previous positive bail history and had no any previous criminal record therefore had no history of jumping bail. The local administration was interviewed and various others independently gave their opinion on his release on bond terms and from this it was deduced that his safety and that of the witnesses were not an issue during trial period and they were unlikely to be an issue now while he remains out on bond.
7. In the report it was argued that it was clearly evident that the alleged incidence was committed in September 2023 and the accused was arrested almost a year later. During the period it was established that he was within the home area and was not in the run, only affirmed his possibility of remaining within the jurisdiction of this Honourable court.
8. The officer recommeded that on account of interviewees information and the findings herein, this Honourable Court could consider admitting the accused on lenient bond terms with an alternative cash bail.
Analysis and Determination
9. 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’). 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.”
10. 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 the CPC 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
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.
11. 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.
12. 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.”
13. The Constitution does not define the term “Compelling reasons”. But, generally a compelling argument would be something that is in accordance with the fact or some reality. In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term “compelling reasons” as follows: -
“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.”
14. In the case of Republic v Francis Kimathi [2017] eKLR, the court held that:
“… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution.
15. The Bail and Bond Policy Guidelines provides thus, in regard to compelling reasons:
“(a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:
a. That the accused person is likely to fail to attend court proceedings; or
b. That the accused person is likely to commit, or abet the commission of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.”
16. The purpose of bail/bond is to ensure the accused person’s attendance during trial.
Conclusion and Disposition.
17. From the foregoing, I find this not being a case where I should deny the applicant bail. Therefore, I grant the applicant/ accused bond on the following terms:
(a) To execute bond of Kenya Shillings FIVE HUNDRED THOUSAND (Kshs. 500,000/-) with a surety in a similar sum;
(b) He is deterred from communicating with the families of the victims until the conclusion of this trial.
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……24TH .…………DAY OF ………OCTOBER ………………..…….., 2024
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Ms. Maina……………State Counsel;
………………………………………….…Applicant