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JudgmentThe Republic VS OMAR BARAKA BAKARI5 min read

The Republic VS OMAR BARAKA BAKARI

High Court at Milimani High Court · · Alexander Muasya Muteti


  1. The applicant in this matter is charged with the offence of murder contrary to section 203 as read with 204 of the Penal code.
  2. It is alleged that the accused person on 7th May 2023 murdered one Samuael Karuthi Maina within Zimmerman Area Kasarani Sub County within Nairobi County.
  3. In his application the applicant through counsel has submitted that there exist no compelling reasons for him not to be released on bail. The applicant has hinged his application on the provisions of Article 49(1) (h) of the Constitution of Kenya which he argues guarantees every accused person the right to be released on bail unless there are compelling reasons to justify the denial of bail.
  4. Ms Nyamongo counsel for the accused informed the court that the accused has been in custody for close to 2 years without taking plea and that the delay has been prejudicial to the accused.
  5. The accused is said to be a family man with two children aged 11 and two years.
  6. The accused contended that he was arrested from his residence as opposed to the position propounded by the prosecution in their affidavit that he was arrested from an AirBNB while in hiding.
  7. Counsel for the accused urged the court to consider that the accused come from a humble background and grant him reasonable bail terms.
  8. The prosecution filed relied on an affidavit sworn by No. 81168 SGT. Luke Marwa Olang of DCI Ruaraka.
  9. The officer deposed that the witnesses in the matter are known to the accused by virtue of being neighbors and the investigator believes that if released on bail the accused is likely to interfere with the witnesses or influence them.
  10. The officer does not however state what informs his belief. He has also not placed any material to demonstrate that there have been threats issued to the witnesses either directly or indirectly by the accused even though he states that some of the witnesses have claimed to have received threats to that effect.
  11. The medium of the alleged threats has not been disclosed thus the deposition is bare in that regard. The officer should have done better by stating expressly how the threats were communicated and present actual evidence to prove the same. His statement in that regard is insufficient considering that he had the opportunity to get at least one of the witnesses swear an affidavit to confirm the allegations if at all he believed in the claims.
  12. The court has not been told why that was not done thus the court cannot on the basis of the allegations decline to grant bail. See Republic vs Joktan Mayende and 3 others (2012) KEHC 5551(KLR).
  13. The officer goes further to state that the accused has no fixed abode and he is apprehensive that once the accused is released on bail, he may take flight never to return for trial.
  14. The prosecution has further argued that the right to bail is not absolute and therefore this court should be inclined to deny bail for the reasons given.
  15. The court has considered arguments presented by the parties on both sides. The court is not persuaded that the prosecution has discharged the onus of proof to establish the existence of compelling reasons to have the accused person held in custody during the period of trial.
  16. The jurisprudence that has now solidified in this area of bail since the promulgation of the Constitution of Kenya 2010, is that the courts should be inclined to grant bail so as to promote and uphold the transformative nature of our Constitution which advances the inculcation of a culture for. respect of human rights.
  17. The courts should not deny an accused person liberty without a proper cause and that the duty to establish the existence of compelling reasons is that of prosecution and the standard applicable is that of prove on a balance of probabilities. The state cannot get away with mere allegations of threats of interference with witnesses.
  18. The prosecution must tender actionable evidence of actual or attempted interference. The court in Rep. vs Dwight Sagaray and 4 Others (2013) eKLR explicitly stated that mere apprehension on the part of the prosecution can never be a basis to deny bail.
  19. The witnesses who allege to have received threats should have sworn affidavits to that effect and have the same presented to the trial court otherwise any claims of threats to witnesses without proof would be grossly insufficient. The contents of the affidavit by the investigating officer cannot meet the threshold of compelling reasons.
  20. The prosecution has not satisfied the requirements of Section 107 of the Evidence Act on their claim of threats to witnesses. He who alleges must prove. The investigating officer has also not shown any evidence of any investigations that they conducted such claims of threats to witnesses.
  21. The issue of witness interference is considered to be so serious in this country and precisely for that reason Kenya was among the very first countries in Africa to enact the Witness Protection Act No. 16 of 2006. The prosecution cannot claim that there are witnesses under threat yet no attempt has so far been made to set in motion the mechanisms under the Act. It can only mean that the investigating officer does not belief in the seriousness of the allegations by the witnesses if any.
  22. The other ground relied on by the prosecution is that the accused person has no fixed abode. The accused has however informed the court that he was arrested from his place of residence thus he is not a vagrant.
  23. The investigating officer has not discounted that fact thus the court has no reason to disbelieve the accused.
  24. The upshot of the above is that the accused is hereby admitted to bail on the following conditions ;-
  25. The accused shall be released on a bond of Ksh. 1million plus 1 surety of a similar amount.
  26. The accused person and the surety shall provide their mobile telephone numbers which numbers they shall retain in use till the matter is heard and determined.
  27. The accused person shall provide details of his fixed abode including details of the property owner and the terms of occupation. If a lease agreement the same shall be disclosed.
  28. The accused persons details as captured in his identification documents shall be provided.
  29. The accused person shall provide a copy of a letter from his local chief confirming that he resides within his locality.
  30. The accused shall not leave the jurisdiction of the court without leave of the court.

22.It is so ordered.

    The Republic VS OMAR BARAKA BAKARI The Republic VS OMAR BARAKA BAKARI