The Republic VS DANIEL OCHIENG The Republic VS DANIEL OCHIENG

The accused person has made an oral application seeking to have this court review its earlier ruling declining to grant him bail pending trial
The accused person argued that in the ruling of Lady Justice D. Kavedza dated 31^st July 2023. The learned Honorable judge declined to grant bail for the reason that there was real likelihood of interference with prosecution witnesses and that the deceased’s family was at the time apprehensive that his release on bail could pose a danger to them.
The accused person now argues that circumstances have changed since prosecution witnesses Number 1 to 4 who include the family members of the deceased and his two workmates have already testified thus he should be admitted to bail since the thereat is now removed.
The prosecution through Ms. Dela Prosecution counsel has objected to his release on bail citing the fact that immediately after the arrest of the accused person, the deceased’s vehicle was burned in circumstances that point to the fact of the accused person having accomplices out there who are bend on destroying evidence in order to defeat justice.
According to Ms. Dela if the accused person is released at this stage there is no guarantee that he will return for trial in view of the evidence so far adduced against him.
This court is under duty whilst considering an application of this nature to review the matter holistically in order to ensure that whatever orders that the court issues are geared towards upholding the fundamental rights of the accused person notably the right of Fair Trial under Article 50 of the Constitution as well as the Right to Bail under Article 49 (1) (h) of the constitution.
In doing so the court must remain alive to its duty under Article 159(2) (a) ,(b) and (e) of the Constitution.
In considering whether or not to release an accused person om bail pending trial, the purposes and principles of the Constitution must be protected and promoted. In particular the court must ensure that the rights of the accused person are weighed against the public interest in upholding the rule of law by ensuring that persons charged with crime do not evade justice to the detriment of the collective public good in upholding the rule of law.
Article 27 of the Constitution provides:-

27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). (6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than twothirds of the members of elective or appointive bodies shall be of the same gender.

A reading of the Article reveals that all persons are entitled to equal protection and benefit of the law. This certainly includes the victims of a crime and witnesses in any matter before the court.
The court in considering the accused person’s right to be released on bail pending trial must not lose sight of the fact that it is in the interest of justice that a trial be conducted in an atmosphere that permits witnesses to give evidence without any fear of reprisals.
The court has already received evidence in this case which points to actors who are still out there who upon the arrest of the accused person who went ahead to burn a motor vehicle that would have been a useful exhibit in the matter. That fact only serves to augment the submission by the prosecution that there is still reason to continue holding the accused person until the matter is heard and determined in order to protect the interest of justice.
In considering bail applications, the court has to take into account a number of considerations that are key in order to ensure that the interests of justice are not compromised as a result of releasing an accused person on bail pending trial. No doubt the primary consideration is whether an accused person once released on bail would turn up for his trial however, a court that is called upon to review a ruling at the middle of a trial cannot close its eyes to the evidence already adduced obviously without condemning the accused person.
In 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”. [Emphasis added]
The strength of evidence so far received in this case cannot therefore be overlooked by this court and the court must therefore strike a delicate balance between the right of the accused person to be presumed innocent until proven guilty and the wider interest of ensuring the equal protection and benefit of the law to the victims of crime.
In the end, this court finds that taking into account the totality of circumstances in the matter and considering that 4 Witnesses have so far testified against a Number of 19 witnesses intended to be called it would be fair in the circumstances to order that the trial proceeds expeditiously while the accused person remains in custody.
It is the finding of this court that the application for review of bail is therefore not merited and is hereby rejected.
It is so ordered.