Republic v Ong’era (Criminal Case E033 of 2023) [2024] KEHC 1393 (KLR) (7 February 2024) (Ruling)
Neutral citation:
[2024] KEHC 1393 (KLR)
Republic of Kenya
Criminal Case E033 of 2023
TA Odera, J
February 7, 2024
Between
Republic
Prosecutor
and
Alfayo Obwocha Ong’era
Accused
Ruling
1.The Accused Person in this matter is charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. He was arraigned in Court on 23.8.2023 and he pleaded not guilty to the charge.
2.On 24.8.2023, this Court admitted him to bond on the following terms-Accused may be released on bond of Kshs 500,000/=, with one surety of the same amount.
3.On 31.10.2023, the accused made an oral application for review of the bond terms.
4.The Prosecutor opposed the application and stated that the bond terms were fair in the circumstances.
5.It is that application for review of bond terms that is the subject of this Ruling.
Determination
6.I have considered the Application and the Prosecution’s opposition thereto.
7.I have also considered the Probation Officer’s Bail Assessment Report with regard to the Accused Person.
8.The Black’s Law Dictionary 9th Ed. defines review as consideration, inspection, or reexamination of a subject of thing. Bail review means a process of re-examination of bond terms to an accused person who has been unable to post bail before the same court.
9.The right to be released on bail or bond is entrenched in the Constitution under Article 49(1)(h) and Section 123 of the Criminal Procedure Code. Section 3 of the Bail and Bond Policy Guidelines provides for the general principles as relates to the process of bail and bond decision-making which principles were derived from international best practices.
10.Indeed, Section 123A of the Criminal Procedure Code, Cap 75 of the Laws of Kenya, provides for the considerations that a Court should have in mind when considering an application for bail or bond. They are:a.The nature and 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 fulfillment of obligations under previous grants of bail; andd.The strength of the evidence of his having committed the offence.
11.Section 4.9 of the Bail and Bond Policy Guideline provides that the primary factor to be considered by the courts in bail decision-making is whether the accused will appear for trial. The following factors, which are by no means exhaustive, should be considered:a.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person if found guilty.b.The strength of the prosecution case.c.Character and antecedents of the accused person.d.The failure of the accused person to observe bail or bond terms.e.Likelihood of interfering with witnesses.f.The need to protect the victim(s) of the crime.g.The relationship between the accused person and potential witnesses.h.Child offenders.i.The accused person if a flight risk.j.Whether accused person is gainfully employed.k.Public order, peace or security.l.Protection of the accused person.
12.In the case of Harish Mawjee & another v Republic [2020] eKLR Criminal Revision Case No 545 of 2020, Lessit J. (as she then was) held as follows:
13.While certain factors have been put in place to govern the grant and/or refusal or bail or bond, there is no known formula of how one would arrive at a given set of conditions. The operative word though is “reasonable” bail and bond terms.
14.Paragraph 3.1(d) of the Bail and Bond Policy Guidelines underpins the right to reasonable bail and bond terms as follows:d)Right to Reasonable Bail and Bond Terms: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 that 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. 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.
15.I am persuaded by the case of Mohamood Chute Wote & 2 others v Republic [2021] eKLR, where the Court held thus:
16.I am also persuaded by the decision of the Court in the case of Victor Kiprono Ngeni v Office of the Director of Public Prosecutions [2021] eKLR, where the Court held thus:
17.I have considered the Probation Report and the same is, unfortunately, unfavourable to the accused person. His family and the area chief consider him a flight risk. The deceased’s father is said to be emotional and could do anything.
18.In addition, the accused person has been charged with the offence a murder, which is a capital and serious offence.
19.I, therefore, find and hold that the bond terms as earlier issued are fair and reasonable in the circumstances.
20.Hearing on 29.2.24.
DATED, DELIVERED AND SIGNED AT KISII THIS 7TH DAY OF FEBRUARY 2024.TERESA ODERAJUDGEIn the presence of:Mr Koima for the StateN/A for the Accused Persons/ApplicantOigo -Court Assistant