Republic & 1 other v Alex Wanyiri Ndaruga & 5 others

b) There is likelihood of interference with witnesses. c) The review of bond terms should be put on hold until civilian witnesses have testified. Analysis 3. The issue is whether the 1st and 2nd Accused persons herein should be released on bail pending trial. 4. Article 49(1)(h) of the Constitution of Kenya provides; An arrested person has the right – (h) To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. 5. Section 123(3) of the Criminal Procedure Code provides; The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced. 5. The law stipulates the reasons upon which bail or bond may be granted. Section 123A of the Criminal Procedure Code provides; (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 Page 2 of 7 M. D. KIZITO, J.

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regard to all the relevant circumstances and in particular— (a) the nature or 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 offence; (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 has 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; 6. This court has to determine what would be reasonable terms based on which it can be assured that the accused persons will attend court to the end of trial. In Mohamood Chute Wote & 2 others v Republic [2021] eKLR Hon. Grace Nzioka expressed herself on Article 49(1)(h) and section 123 of the Criminal Procedure Code as follows; The key word is; “reasonable.” Thus, the question that arises is: what criteria should be used in determining what is reasonable? In my considered opinion, the starting point is the recognition of the Page 3 of 7 fact that, under Article 50(2) of the M. D. KIZITO, J.

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Constitution of Kenya, 2010, every accused person is presumed innocent until proved guilty. The purpose of bail and bond terms is to ensure therefore that the accused attends the trial. Further, the provisions of section 123A of the Criminal Procedure Code provides the relevant circumstances to be considered, including; nature and seriousness of the offence, character of the accused, record of compliance with previous bail and bond terms and strength of the evidence to be adduced. 7. The court also considers that the accused persons are innocent until proven guilty. Further, at Paragraph 3.1. (d) of the Bail and Bond Policy Guidelines (at page 9) it is provided that: d) “…Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Page 4 of 7 M. D. KIZITO, J.

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Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.” 8. The averments in the Affidavit by the prosecution was not controverted by the accused persons. However, the 3rd Accused person was already released on bond terms owing to his ill health. The 1 st Accused was to remain in custody until civilian witnesses testify. 9. In my view, justice in bail applications also denotes justice to the accused person and justice to the victim of crime served if both parties, that is, the victim and the accused get justice. It is a two-way traffic. Like to the accused person, the way to the victim’s justice is through a fair hearing and fair trial where witnesses are enabled to attend court to freely testify on the truth of what they know, saw, or heard. If an accused person is likely to abscond, then the court will be doing an injustice to the victim of the offence if it releases him on bond only for him to make the trial impossible, and so is the case if the accused person is likely to interfere with the witnesses or his release risks his own safety due to public hostility. 10. Notwithstanding, the accused persons before this court are assured of a fair hearing and a fair trial. They remain Page 5 of 7 M. D. KIZITO, J.

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innocent until proven guilty as no evidence has been placed before this court yet on their culpability. 11. Therefore, as the civilian witnesses have already testified, I find no compelling reason to keep the 1 st Accused person in custody. I allow him bond. 12. As to the 2nd accused person, it was determined that he sent Ksh. 6,500/= to a witness. The witness who received the amount is, however, no longer a witness in these proceedings. There is no good reason to deny him bond, as it is not established that he has continued with his previous conduct. Civilian witnesses have all testified, and I see no chance of such conduct. 13. The net effect of the foregoing is that the court has not found a compelling reason to deny bond to the 1st and 2nd accused persons. Determination 14. I therefore make the following orders: a) The 1st Accused person’s application for bail pending trial is merited and is allowed. b) The 2nd Accused person’s application for bail pending trial is merited and is allowed. c) The 1st Accused person is hereby admitted to bond of Ksh. 700,000/= with one Kenyan surety. Page 6 of 7 M. D. KIZITO, J.

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d) The 2nd Accused person is hereby admitted to bond of Ksh. 700,000/= with one Kenyan surety. e) The accused persons shall not go within 15 km of the home of the deceased or in any way seek to meet any witnesses. DELIVERED, DATED and SIGNED at NYERI on this 30th day of July the year of our Lord Two Thousand and Twenty-Six. Ruling delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of:Mr. Kihara for the State Ms. Mwikali for the 1st Accused Mr. Okendi for the 2nd and 3rd Accused Accused – present Court Assistant – Timothy Page 7 of 7 M. D. KIZITO, J.

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