IN THE HIGH COURT OF KENYA

 AT KISII

CRIMINAL MURDER NO.68 OF 2011

VERSUS

RULING

1. The accused herein, Amos Omondi Arego, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that he murdered Calnix Ouma Adero on the 4^th July 2011 at Nyachebe Beach, Kasgunga Sub Location, Gembe West Location in Mbita District of Homa Bay County in the Republic of Kenya. He denied the charge. He now wants this honourable court to release him on bond pending the hearing and determination of his case.

2. Mr. Omonde Kisera, counsel for the accused relied on the provisions of Article 49 (1) (h) of the Constitution of Kenya in trying to persuade the court to grant bond to the accused. Mr. Kisera argued that the provisions of section 123 of the Criminal Procedure Code are now null and void in view of the Constitutional provisions which make murder a bailable offence. Reliance was placed on Kisii High Court Criminal Murder Case No.56 of 2010 in which Honourable Makhandia, J. granted bail to the accused pending trial.

4. The success or failure of this application turns on what this court makes of the provisions of Article 149 1) (h) of the Constitution. Under the said provisions, an accused person has a right to be released on bond or bail, on reasonable conditions pending a trial unless there are compelling reasons not to be released. The state has the duty to show to the court that there are NO.258 compelling reasons why the accused in this case cannot be released on bond. In times gone by, and more specifically before the promulgation of the Constitution of Kenya on 27^th August 2010, the offence of murder was not bailable. Today, bail is a constitutional right, so that the provisions of section 123 of the Criminal Procedure Code have been rendered subject to the Constitutional provisions although the Criminal Procedure Code is yet to be amended to bring it in line with the new constitutional dispensation. I can safely say that section 123 of theCriminal Procedure Code is inconsistent with the Constitution of Kenya to the extent that it forbids bail to a person who is arrested on allegations of having committed the offence of murder.

5. As stated earlier, the burden is on the prosecution to make a strong case as to why bail/bond should be denied to an accused person, and if the state had responded to this application, it would have given the NO.258 court an opportunity to gauge how the interests of the accused can be weighed against the interests of for example the family of the deceased and the society at large. For there is no doubt that as much as the rights of an accused must be protected, the rights of the family of the deceased who have lost a loved one must also be considered in equal measure, for every right has a corresponding obligation.

6. In the present case, if the accused is eventually found guilty and convicted, he will be sentenced to suffer death as by law established. With this in mind, it may be that once the accused is released on bond, he will want to abscond in order to avoid the hangman’s noose. This is why, even in the absence of a statement from the State, this court has to weigh the competing interests in this case, namely those of the accused vis-à-vis those of the larger society and to determine whether greater good would result if the accused is released or if he is NO.258 not released. Another factor to consider is whether the accused is likely to interfere with witnesses if he is released on bond. What about the accused’s own safety? Will he be safe mingling with people who may feel hurt because of what they believe the accused has done? Will the victims want to revenge by lynching? These are some of the issues that must occupy the mind of the court as it seeks to protect the rights of the accused person, remembering that victims of crime have rights too.

7. The purpose of granting bail is to secure the attendance of the accused in court from the safety of his own home environment. In the instant case, this court has not had the benefit of hearing about the other side of the accused’s application from the state. In his submissions, Mr. Kisera said little, only mentioning that the accused was ready and willing to abide by any conditions that may be imposed by this court. NO.258

9. It is so ordered.