Elijah Muthii Njanja v Republic

5. In her submissions, learned prosecution counsel, Ms Muriu maintained her opposition to bond relying on the replying affidavit sworn by P.C Gitonga but added that, if the court was inclined to allow the application, it should be with a condition that the accused will live away from the place deceased’s family resided and will not contact with its witnesses. 6. It is trite that under Article 49(1) (h) of the Constitution, an accused or arrested person has a right to be admitted to bond pending charge or trial if the prosecution did not demonstrate compelling reasons to warrant denial of bond. 7. As far as I know, there is no universal interpretation on what amounts to compelling reasons and each case must be decided on its own facts and circumstances. However, the court of appeal in Michael Juma Oyamo & Another v Republic [2019] eKLR provided guidance in this when it cited with approval the decision in R v Joktan Malende & 3 others Criminal case No 55 of 2009 in which the term ‘compelling reasons’ was defined 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 standards set by the Constitution.” 8. The reasons fronted by the prosecution in opposition to the application must in my view be juxtaposed with the accused’s constitutional right to enjoy his liberty as he waited for conclusion of his trial in order to asses them and determine whether they were weighty enough to justify limitation of the accused’s aforesaid right. 9. The pre-bail report confirms the prosecution’s apprehension that if released, the accused may instil fear in its key witness who is the deceased’s daughter or otherwise interfere with her evidence. But the report also confirms that the accused hails from Baricho in Kirinyaga County and that his brother had also ofiered to host him in Embu County during the trial. 10. Given the foregoing, although I have noted and fully appreciate the views expressed by the victim’s family (contained in the pre- bail report) given that they’re still mourning the loss of their loved one, it must be remembered that the accused person still enjoys his constitutional right to be presumed innocent until proven guilty. 11. The concerns by the prosecution regarding possible interference with its potential key witness as well as the fear that if released the accused’s safety may be compromised if he went back to the place the ofience was allegedly committed though valid are defused by the fact that it is not disputed that the accused has alternative places of residence in either Kirinyaga or Embu Counties and does not need to go back to the locus in quo if released on bond. C 12. In view of the foregoing, it is my view that the reasons relied on by the prosecution in this case do not amount to compelling reasons within the meaning contemplated by Article 49 (1) (h) of the Constitution since they can be countered by the imposition of appropriate bond terms which would ensure that the accused is prevented from getting into contact with the victim’s family or prosecution’s witnesses. In the circumstances, I find merit in the application and it is hereby allowed on the following terms; i. The accused will be released upon executing a bond of Kshs 500,000 together with one surety of a similar amount. The surety shall be approved by the Hon. Deputy Registrar of this court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/2309/eng@2024-03-06 2

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ii. Once released, the accused will not reside in Makuyu location and will not contact, interfere or interact with potential prosecution witnesses in any way either directly or indirectly. iii. The accused shall attend the court whenever required. iv. In default of any of the above conditions, the accused’s bond will be cancelled. Orders accordingly. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 6TH OF MARCH, 2024. C.W GITHUA JUDGE In the presence of : The accused Mr. Kirubi for the accused Ms. Nzuki for the State Ms. Susan Waiganjo Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/2309/eng@2024-03-06 3

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