Republic VS MILKA MATOFALI AND JANE alias LUCY MUSIANI AND 1 Other(s)

1.    This ruling relates to the Accused’s oral application for bail pending trial. The application was presented by Learned Counsel Mr Nyikuli for the  1st ,2nd and 3rd accused  persons.
2.    The application was opposed.
3.    On its part, the prosecution stated that the area where the accused persons hail from is known for revenge attacks upon suspected offenders. Houses are burnt and suspects killed by mob.
4.    Citing the Constitution, Learned Prosecutor Mr  Mbonzo argued that the  suspected offenders have a right to bail pending trial and also a right to life and safety. He urged this Court to confirm the situation on the ground before considering the application bail and bond.
5.    Mr Nyikuli further submitted that the prosecution has not put forward compelling reasons and that the fear that the accused persons may be harmed is not a compelling reason.
6.    It is on the basis of the foregoing that this Court is called upon to determine the bail and bond application.
Analysis
7.    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’).
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.
10.    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.
13.     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.\"
14.    Therefore, in granting bail or bond, the trial court is called upon to exercise its discretion and, if there are no compelling reasons to deny an accused bail or bond, the trial court should exercise its discretion in favour of the accused.
15.    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.”
16.    Further, the High Court in Republic v Joshua Mueke Mutunga & 3 others [2020] eKLR in determining the criteria to be applied on whether to grant bail or bond relied on the decision by the Supreme Court of Nigeria in Alhaji Muiahid Dukubo-Asari v Federal Republic of Nigeria, SC 20AI /2006 which set out a similar criteria on the granting of bail by holding as follows: -
            \"…When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others, the following:
i.    The nature of the charges;
ii.    The strength of the evidence which supports the charge;
iii.    The gravity of the punishment in the event of conviction;
iv.    The previous criminal record of the accused, if any;
v.    The probability that the accused may not surrender himself for trial;
vi.    The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;
vii.    The likelihood of further charges being brought against the accused;
viii.    The probability of guilty;
ix.    Detention for the protection of the accused;
x.    The necessity to procure medical or social report pending final disposal of the case”.
17.    The prosecution’s contention in this matter is that the Accused persons security is at a risk due to the retaliation tendency in the area
18.    Having said as much, this Court now turns to a consideration of the ground tendered in opposition to the application.
19.    On the ground that the releasing the accused persons being detrimental to their security, the probation report categorically states that the community is hostile due to the current charge and other suspicious deaths in the 1st accused persons household.
20.    For the 2nd  and 3rd accused person the probation report similarly states that the community is hostile and not in support of her being granted bail or bond, this is due to the allegation of other suspicious deaths in her house hold and the her involvement in selling changaa has also increased criminal activities in the area. The probation report also stated that the tension remain high and the security of the 2nd accused person is not guaranteed.
21.    The security of an individual starts with the person and in  this case the  three accused persons. The said accused persons have not raised an issue as to their security being threatened by the public or the victim’s family.
23. 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, that  there is no  compelling reason and admitting the accused to bail or bond at this point in time will  not be prejudicial to the trial.
24.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.
25..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)    Each accused person is admitted to a bond of Kshs.500,000/- and a surely of a similar amount.
DELIVERED, SIGNED AND DATED AT KAKAMEGA THIS 23RD DAY OF SEPTEMBER, 2024.