REPUBLIC OF KENYA. IN THE MAGISTRATES COURT AT NAIROBI MILIMANI LAW COURTS CRIMINAL CASE NO. 110 OF 2020 REPUBLIC. VERSUS PAUL ONGILI BABU OWINO. . ACCUSED PERSON RULING The prosecution objects to the release of the accused person herein on bond. The accused person is charged with two counts as follows: ion 220(a) of the Penal Count 1 - Attempted murder contrary to sei Code that on 17 day of January, 2020 at B Club Galana Plaza in Kilimani within Nairobi County, unlawfully attempted to cause the death of Felix Odhiambo Orinda by shooting him on the neck. Count 2 ~ Behaving disorderly while carrying a firearm contrary to ith section 34(a) of the Firearm Act (Cap. 114) Laws of Kenya 17 day of January, 2020 at B Club Galana Plaza in Kilimani section 33 as read within Nairobi County, while carrying a firearm make STEYR PISTOL LMCCR CASE NO. 10/2020s/no 3159039 became disorderly and fired one round of ammunition with intent to shoot FELIX ORINDA. The reasons advanced by the State for the objection to the release of the accused persons on bond are contained in an affidavit sworn on 20 January, 2020 by Police Corporal Noah Kiplanget of the Directorate of Criminal Investigations (DCI). Kilimani and one of the investigating officers in the case. The objection is canvassed in the submissions of learned Prosecution counsel Mr. Ondari, the Deputy Director of Public Prosecutions who has highlighted and expounded on the depositions in the affidavit. In the affidavit in objection to bail, Cpl Noah Kiplangat has deposed to what the prosecution presents as compelling reasons to deny the accused person bond/bail pending his trial. In the affidavit the officer majorly dwells on the circumstances leading to the arrest of the accused person. On these depositions learned counsels for the prosecution led by Mr. Ondari and the defense consisting of Mr. Cliff Ombeta, Dunstone Omari, Peter Omingo, Duncan Okatch, Edward Holly and Charles Omanga made their submissions, the prosecution urging that they were compelling reasons to warrant a denial of bond while the defense argued that they are not compelling at all.Learned counsel for the prosecution Mr. Ondari subrrits that the prosecution recognizes the accused person's right to be released on bond/bail but adds that this right is not absolute and may be denied where there are compelling reasons given by the prosecution. He has referred to the factors the courts take into consideration as set out under paragraph 4.9 of the Bail and Bond Policy Guidelines, 2015. He has outlined several reasons why the court should deny the accused person release on bond in this case. First is that the matter is still undei wvestigations and more charges are likely to be brought against the accused person. Second, learned counsel submits that the charges are serious, the first count being attempted murder which carries a penalty of life imprisonment. According to learned counsel, this may induce the accused person to abscond. Third is the strength of the prosecution's case. Learnec counsel submits that there are eye witnesses who have recorded statements and according to him the evidence is strong and the prosecution is definitely going to secure a conviction. He also submits that the character and antecedents of the accused person is not new to the court as he is facing Kiberal Magistrates Criminal Case No. 1644/2017. 1MCCR. CASE NO. 110/2020Learned counsel also submits that the accused person being a Member of Parliament for Embakasi East Constituency the likelihood of interfering with witnesses is real. There is need to provect the victim of the crime. Learned counsel submits that the accused person is well known to the victim and he has made attempts to some of the witnesses particularly the father of the victim. This, according to learned counsel is attempting to interfere with witnesses. Learned counsel also submits that it will be imprudent for this court to release the accused person on bond when the victim of the crime is in a critical condition in hospital. Learned counsel referred the court to a note from Dr. Paul M. Makau, the acting Director, Medical Services & Research, The Nairobi Hospital dated 20" January, 2020. The note indicates that the victim Felix Odhiambo Orinda was admitted in the Nairobi Hospital following a reported gunshot incident on 17% January, 2020. He was admitted the same day and underwent surgery on the same day. He was transferred to the Critical Care Uni: where he remains admitted, His diagnosis at the time was Spinal Cord injury with quadriplegia Mr. Ondari provided the following authorities for the court's consideration and guidance: Republic v. Frederick Ole Leliman & 4 others [2016] Ekir. KKK v Republic [2017] eKLRRepublic v Joktan Mayende 7 3 others [2012] eKLR ‘Mr. Ondati heavily relied on the issue of the accused person being likely to interfere with witnesses. Mr. Cliff Ombeta, Mr. Dunstone Omari and Mr. Duncan Okatch learned counsels for the accused person made reply submissions. Learned counsels for the defence cite Article 49(1)(h) of the Constitution which provides that an atrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. Learned counsels submit that the prosecution has the onus to demonstrate compelling reasons to deny an accused person bond but in this case they had not done so. Learned counsels submits that the prosecution has not served the defence with the evidentiary material they intent to use in the case and so their submission that they have a strong case and are going to secure a conviction has no basis. Mr. Ombeta submits that even though it is true that the accused person is influential the prosecution has not demonstrated how his status will influence witnesses. He submits that the defence has not been told who these witnesses are. However, on that point | would say that is not correct because the face of the charge sheet contains names of tenwitnesses. So, the witnesses will not have to be imagined but are as laid on the charge sheet. Mr. Ombeta also disputes the allegation that the accused person tried to reach the victim's father, pointing out that his details have not been provided ansd in any case, the accused person has been in custody ever since he was arrested and so had no means to access the victim's father because even his mobile phone was taken away. Learned counsel denies that the accused person is facing the criminal case cited by the prosecution at the Kibera Magistrates Courts. Indeed the prosecution has not provided a copy of the charge sheet or any other form of evidence to back up that allegation. This is laxity on the part of the deponent of the affidavit. You do not just throw around numbers and expect that the court will rely on it to give favourable orders. Learned counsels submit that the accused person is no: a flight risk and has no intentions of leaving his country where he is a serving MP. They also submit that the presumption of innocence must take centre-stage in this case. The only issue the court should consider is whether or not the accused person is a flight risk and according to the defence he has well demonstrated that he is not. Learned counsels for the defence submit that investigations cannot be conducted forever and this at the expense of the rights of the accused CCR. CASE NO. 110/2020person. If the accused person is eventually acquitted of the charges there can be no reparation for the injustice done for his incarceration. Learned counsels for the defence also submit that on the issue of interference with witnesses there is the Witness Protection Agency that would take care of any vulnerable witnesses. The court directed that a bail report be prepared by a probation officer especially since the views of the victim had not been expressed on the release of the accused person on bond. It would also shed light on some of the contentious issues that had been raised in the submissions. A bail report has been made available to the court in respect of accused person by Hannah Maingi deputy Director Probation and Aftercare, headquarters. The report is quite comprehensive, touching on all aspects of the case from the victim's side, that of the accused person, from the community and investigative agencies. The report indicates that the victim was interviewed in hospital ward at the Critical Care Unit in the presence of an ICU specialist Dr. Reuben Okioma and his views were taken. He was stable and could talk albeit looking tired and in pain. He voiced concerns over his safety. He did not pronounce himself on issues related to bail/bond and the relationship he has with the accused person but had the following to say, “/ am tired, | am in pain, am traumatized, |don't want to talk and I cannot fathom anything. I have not slept for days because | am scared of my life and future.” The relatives of the victim were also interviewed in a conference room at the hospital because they could not be available at their residential house in Mathare North due to the need for them to be by the victim at the hospital. The report also indicates that additional information was had through observations and interviews from identified members of the community and the investigative agencies. The report does not however disclose the names or relations to the victim of any of these relatives, the community members or investigative agencies. The report indicates that the victim’s family members are opposed to the release of the accused person on bond. Their concern is about the security of the victim and other family members, victim treatment and interference with the trial process considering that the accused person is a Member of Parliament. However, they add that they are aware that the accused person has a right to be granted bond/bail as provided for in the Constitution. They plead with the court that if bond is granted protective measures should be instituted to ensure the secutity of the victim, the family and also to safeguard against witness interference. The victim's family also acknowledges that the victim and the accused family were well known to each other. They also ackrowledge the CCR, CASE NO. 110/200,accused person's kind gesture of supporting the treatment of the victim considering that they would not support that level of treatment. On the part of the accused person the report has given his family background as well as his current marital status and immediate family. He is the Member of Parliament for Embakasi East corstituency and has various leadership roles in Parliament. He is also said to be a businessman. (On the accused person's past conduct hi is said to repsect all people regardless of one’s position or standing in the community. He is described as calm in nature and with a big heart for helping other people. There are no adverse reports on him from the local administration of where he resides in Kileleshwa ostensibly because he is a private person ad they have had little interaction with him. According to the report, the accused person's aggressiveness is a brand he has adapted to suit his future national political ambitions. He however states that his character and political influence will not be used to interfere with the case or the witnesses. The accused person acknowledges that he indulges in alcohol and substance use, He has severally been arraigned in court and in all instances he has honoured the bond/bail terms imposed, The accused person acknowledges the gravity of the offences he is charged with. CCR CASE NO. 110/2020In conclusion the bail report indicates that the accused person may not be a flight risk because most of his interests are in the country and as an MP this is a factor that would motivate him to attend court. He is aware of repercussions of jumping bail, engaging in acts that may be construed as witness interference or jeopardize the seaurity of the victim. He promises to comply with any bond terms if granted. The court gave the parties an opportunity to make their observations on the bail reports. At the hearing of the bail report Mr. Oundu, learned counsel came on record for the victim. The prosecution and the defence each picked sections of the report that would bolster their respective positions in this matter. Mr. Ondari, the learned deputy DPP reiterated that the prosecution is opposed to the release of the accused person on bond emphasizing that the victim was still admitted to hospital in critical condition and the fears expressed by the family on his security and likelihood of interference with witnesses. Mr, Ombeta learned counsel for the accused person szid the victim had not expressed his views on the issue of release of the accused person on bond and that according to counsel means he was not opposed to the same. | would immediately say that is not correct. Failure to comment on the issue cannot be given any meaning either against or for. It is just that, no comment.Learned counsel points out that the report does not indicate which family member gave the views. However, as submitted by learned counsel for the victim Mr. Oundu, this does not negate the fact that, family members were interviewed and gave their views. The probation officer has indicated that she interviewed them at the hospital. Learned counsel also points out that the report does not show that the accused person has interfered with the victim or is thee any report of threat to security to any family member so far. ‘Mr. Omari, learned counsel on his part urged the court to consider the impact of detaining a sitting MP in custody. He said that under the Parliamentary Standing Orders an MP who fails to attend eight consecutive sittings would loss his sit. In a rejoinder Mr. Ondari, the learned deptity DPP said that that was not a factor to consider in a bail determination as it is not the court's duty to guarantee one’s employment but to balance the rights of the parties, Mr. Oundu, learned counsel for the victim submitted that the fact that the victim had not expressed any views on whether or not the accused person should be released on bond should not be taken against him. He submits that the victim's fears as expressed in the report and the fact that he is still admitted to ICU should be taken into account. After all, the victim is not taking a rest in ICU.According to Mr. Oundu learned counsel, the position of the victim and his family is that the accused person should be detained in custody until the condition of the victim improves and leaves ICU. In that case, the decision to release the accused person on bond should be deferred. Thave given due consideration to the affidavit in objection to the release of the accused persons on bond sworn by Police Cpl Noah Kiplangat and the submissions by learned counsels for the prosecution, the defence and the victim as well as the bail report. The issue for determination is whether on a balance of probabilities the prosecution has provided compelling reasons to warrant the denial of bond for the accused person. The starting point in considering an objection to the release of an accused person on bond or bail is the Constitutional provision under Article 49(1)(h) that an arrested person has a right to be released on bond or bail on reasonable conditions pending his or her trial unless there are compelling reasons not to be released. The burden to demonstrate compelling reasons rests upon the prosecution which has to discharge it on a balance of probabilities. It is therefore no doubt that the right to bail is not absolute. In other words the court has discretion to grant or deny bond. In exercising its discretion to grant or deny bond the court will make @ decision based on its appreciation of the circumstances of each particular case.It has been held in various authorities on decided cases that in determining whether or not the prosecution has demonstrated that there are compelling reasons to refuse an accused person bond the primary consideration is whether the accused person will attend court and be available at the trial. All factors, and facts and circumstances must be considered with this central principle in mind. Section 123A of the Criminal Procedure Code has provided some of the circumstances which the court should take into account as follows: (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 regard to all the relevant circumstances and in particular— (a) the nature or seriousness of the offence; ions and community ties of () the character, antecedents, associ the accused person; (0) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; anc; (@) 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