Adeline, J
- Amid the trial of the three accused persons and remandees that continues in this case, namely Ann Wanjiru Mwai, Marcus Fred and Micheal Fred, all charged with different drugs related offences, the 2nd accused, Marcus Fred, now applies to this court, by way of notice of motion supported by affidavit, for an order that he be remanded to bail with or without conditions.
- The issue of bail in this case was considered and adjudicated upon in the light of an application dated 9th March 2022, made by notice of motion supported by affidavit by the Republic/Prosecution, pursuant to Section 179 of the Criminal Procedure Code read with Article 18 (7) of the Constitution.
- In a ruling of this court dated 18th March 2020, based on the merits of the application, this court remanded all the three Respondents/Accuseds in police custody where they are still being detained as remandees and their detention renewed every 14 days.
- This court granted the application, after it had given due consideration to the facts and circumstances of the case as transpired on account of the evidence that led to the arrest, charge and prosecution of the three accused persons. This court was satisfied, that the case for remand was made out by the Applicant/Prosecution in the light of the jurisprudence in this area of law.
- In arriving to this decision, this court was guided, interalia, by the principle evolving from the case of Esparon vs R [2014[ SCR 331, which says, that “bail may be denied only after the court has properly ascertained that compelling reasons exist in law, and on the facts which justify denial”.
- By way of a subsequent bail application dated 3rd May 2022, the 1st Applicant/2nd Accused, Marcus Fred and the 2nd Applicant/3rd Accused, Micheal Fred, sought to be remanded to bail with or without conditions in variation of the order of this court made on the 18th March 2022.
- In a ruling of this court delivered on the 10th June 2022, this court dismissed the application of the 1st applicant/2nd accused, and allowed the application in respect of the 2nd applicant/3rd accused. The basis for dismissing the application is incapsulated in paragraph [12], [13] and [14] of that ruling which are reproduced hereunder;
“[12] I wish however, to reiterate, that based on various case law authorities, domestic or from other jurisdictions, the prime consideration in respect of an application of this nature, is whether, on account of the evidence laid before this court against the accused, it can be said, that there is a prima facie case againt him. A prima facie case is an early screening of the evidence for the court to determine, whether the prosecution can go forward with the prosecution of the accused, and whilst awaiting trial, whether the grounds to detain him in police custody are made out”.
[13] As such, the standard of proof that the prosecution must satisfy the Court at the prima facie stage, is lower than proof of the accused’s guilt beyond reasonable doubt. Therefore, the prosecution have only to produce some evidence, which based on the findings of this court, they did, and that same are reflected in the ruling of this court dated 18th March 2022 in CM 43/2022 (arising out of CR 12/2022). Some evidence, cannot therefore be equated to all evidence, as itseems to be the view of the 1st applicant/2nd accused.
[14] Therefore, the court agrees with the prosecution, that the 1st applicant/2nd accused’s affidavit evidence in support of the motion for his release from police custody, and that he be remanded to bail with or without conditions, discloses no change in circumstances that would warrant the granting of the motion, and effectively varying the order of this court made on the 18th March 2022 in MC43/2022”.
- In his affidavit in support of this fresh bail application, the applicant/2nd accused, Marcus, Fred interalia, avers;
“4. That it is clear that a locus needs to be carried out and this may be in February next year (2023) and after the continuation of the said case will be taken.
5. That this situation will cause delay in dispensing justice, and also, as per the constitution
the hearing will be delayed to a time unknown to me.
6. That I am moving this court to release me on bail pending the continuation of the hearing of the case.
7. That I am willing and prepared to abide to all and/or any conditions including bail bond, surety, non interference with witnesses, surrendering of passport, reporting to police station.
8. That in the case of Rep vs Neddy Lagrenande, he was released on medical grounds. In the case of the Republic vs Rino Pauline and others, before Judge Esparon where Mr Rino was released on bail. I would also like to refer the court to the famous Charita case where the Court of Appeal granted bail to the accused due to delays in the hearing. I would move the court that this case is similar.
9. That Article 18 (7) is a right to bail and that remanding me is the exception to the rule and not vice versa. That I have satisfied all bail conditions and I would also like to bring to the attention of the court that the 3rd accused in this case who is my nephew is on bail, and there has been no interference whatsoever and that the same conditions can be applied.”
- Objecting to the application, learned counsel for the Republic/Prosecution remarks that, the applicant/2nd accused is being remanded in police custody following a succesful application for remand by the Republic. As per learned counsel’s submission, the success came about because the Republic/Prosecution were able to prove, on account of the evidence, a prima facie case against the accused as well as the grounds they relied upon for the accused continued dentention in police custody.
- Learned counsel also remarks, that the applicant/2nd accused made a bail application for his release on bail, which application was unsuccessful because this court found that, there were no change in circumstances from the applicant/2nd accused’s perspective to warrant the granting of the application, and a variation of the order for remand.
- Learned counsel submits, that the fresh bail application for the applicant/2nd accused to be released on bail with or without conditions, seems to be because some witnesses have already testified and some evidence heard, with no risk or at least little risk of interfering with witnesses, which learned counsel for the applicant/2nd accused considers to be a change in circumstances. Learned counsel for the Respondent has this to say;
“ It is the submission of the Respondent that the fact that some witnesses have already testified does not in and of itself amount to a change in circumstances sufficient to bring the court to change its original decision to bail”
- Submiting on the averment in the applicant/2nd accused’s affidavit in support of the application for bail, suggesting that further delay is expected for different reasons that would delay the conclusion of the case in breach of his right to be tried within a reasonable time, learned counsel for the Republic/Prosecution, goes on as to cite the case of R v Emmanuel [SLR] 11 of 2014, in which case, the court held that;
“Once charged mere delayed would not be a relevant factor to grant bail … the seriousness of the offence … does not diminish with the effluxion of time”
- Learned counsel for the Republic/Prosecution submits, that given the assertion of the applicant/2nd accused that there is a change in circumstances, it is up to him to adduce evidence of the change in circumstances which he has not. Learned counsel cited the case of Roy Beehary vs Republic SCA CR 8 of 2011, in which case, she said, the court held that;
“ A court may well take the view that all the circumstances taken into account, especially, the seriousness of the offence, release the defendant is not the option”
- Learned counsel for the Republic/Prosecution also cites the case of R vs Emmanuel [SLR] of 2004, (as above/supra) contending that, the case is instructive on the court’s approach having held that;
“the court should not venture to hear arguments as to the fact or law which it has previously heard unless there has been a change in circumstances as might affect the earlier decision … otherwise it would be acting in an appellant capacity”
- In considering the merits of this bail application, the court observes, that the affidavit in support of the application is a meagre one, faught with deficiencies, and case law precedents that one would not normally see in an affidavit given that an affidavit should contain evidence of facts in the form of averments, as the basis upon which judicial decision is to be made.
- The relevant averments in the affidavit in support of the application, revolves around what the applicant/2nd accused perceives as actual and anticipatory delays in concluding the case within a reasonable time, and the fact that since the trial has started and some witnesses for the prosecution have already testified, this is a change in circumstances.
- As regards to delay, clearly, this is something that is inherent in the criminal judicial process and it is acceptable, unless it is inordinate or unreasonsable delay. Delay in concluding criminal cases may be for different reasons, all having to do, mainly, with the court’s diary, counsel’s diary and sometimes unforeseen circumstances.
- In the Charita case which is mentioned in the applicant/2nd accused’s affidavit, the Court of Appeal granted bail to the boat owner and the engineer (after 20 months) who were not on the Charita boat at the time of its seizure, but did not release the other three accused. The court remarked that, the judge in the court a quo, “should have treated the case of each applicant in its own right”, as in fact, it has been the case in this case having remanded the 3rd accused on conditional bail. Learned counsel for the Republic has addressed the point about delay supported by the case law authorities, and therefore, I see no need to address it further or in greater depth.
- As regards to the case of the Republic vs Neddy Lagrenade, also mentioned in the applicant/2nd accused’s affidavit in support of his application, it is common knowledge, that his release on conditional bail has been decided on medical ground.
- As regards to the case of Rino Pauline, his Lordship Esparon J, remanded him to bail because he was not persuaded, that the prosecution had established a prima facie case against him, nor made out the grounds that had been pleaded.
- In the instant case, this court is not pursuaded that, there has been unreasonable day, let alone inordinate delay, in having the prosecution of the applicant/2nd accused taking off, and continuing. Furthermore, the court does not foresee or anticipate any event that would hinder the progress of the trial and lead to further delay in having the case concluded. In fact, the court is ready and willing to accommodate the parties in this case in order to bring finality to it within the least possible delay.
- As to whether or not, there has been a change in circumstances that warrant a variation of the existing order under which the applicant/2nd accused is being remanded in police custody, I am certainly not convinced that, the affidavit evidence in support of the application makes such disclosure. The averments in the supporting affidavit lack substance. All it says, is that, the court has heard the evidence of some witnesses which was not the case when the applicant/2nd accused was remanded in police custody in the first place.
- In the circumstances, the application for the applicant/2nd accused to be remanded to bail with or without conditions, that effectively would vary the existing order made on the 18th March 2022 in CM 43/2022 (arising CR 12/2022) remanding the applicant/2nd accused in police custody cannot succeeds. Therefore, it is accordingly dismissed.
Signed, dated and delivered at Ile du Port 23 November 2022.
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B Adeline, J