Right to bail vis-à-vis victim’s rights

By Duncan Ondimu

The ruling, in January 2020, by the Chief Magistrate’s Court, to grant bail to MP Paul Ongili alias Babu Owino, elicited mixed reactions from the legal fraternity, including the Office of the Director of Public Prosecutions, and the public sphere. Among the orders that Hon. Francis Andayi, issued was that the accused – who stands accused of attempting to murder Felix Odhiambo Orinda (DJ Evolve) – shall meet the medical cost of the victim up to the value of Sh10 million, payable in four instalments. DPP Noordin Haji has since filed a complaint with the Judicial Service Commission. The Accused subsequently filed a revision application before the High Court.

The question that has been posed by several legal analysts is whether the decision was legally sound.

There is no single legislative enactment in Kenya that defines “bail/bond”. Section 123 of the Criminal Procedure Code provides for bail in certain cases and Section 123A provides that Courts shall have regard to all the relevant circumstances. There is no clear legislative guidelines on bail and the Courts are left with an unfettered discretion to determine whether to grant bail. However, Bail and Policy Guidelines gazetted on March 2015 offer guidance on what courts should take into account in determining bail applications.

The law on bail has two conflicting demands: fundamental rights of an individual (suspect/accused) and public interest; these must be balanced.
Under the Constitution of Kenya, the right to bail flows from the provisions of Article 49(1)(h), according to which all arrested persons produced before courts of law are entitled to seek their release on bond or bail, pending charge or trial, unless there are compelling reasons. The right to bail is not absolute.

The Constitution does not define what compelling reasons are. However, Bail and Policy Guideline list what the court should consider in determining whether the prosecution has adduced compelling reasons to warrant detention of an accused person. The Guideline at Para 4, 26(a) is to the effect that the prosecution shall satisfy court, on balance of probabilities, of the existence of compelling reasons that justify the denial of bail.

One of the criticisms levelled against the ruling by Hon. Andayi is whether an accused person, who enjoys presumption of innocence, can be compelled to meet the medical costs of the complainant while he/she has not yet been found guilty.

The Bail Bond Policy Guidelines provides for general principals to be taken into account in determining whether or not to grant bail. At page 10, the Guidelines require that the Court take into consideration the rights of the victims. Judicial officers are required to consider the views of the victims before making decisions that affect them. Further, the victims should be informed about bail conditions imposed on suspects and accused persons, particularly those designed to protect victims and their families.

In his ruling, Hon. Andayi, Court laid out the criteria to be considered in determining whether the accused should be granted bail. The magistrate cited Section 123 and 123A of the Criminal Procedure Code and the Bail Bond Policy Guidelines. The Court appeared to have relied heavily on Section 123 that requires Court to consider all relevant circumstances. One of the critical factors that appear to be relevant in the Hon. Babu’s case is the medical treatment of the victim.

A perusal of the ruling at page four shows that the State Counsel, Jacob Ondari, submitted that the victim was admitted at and had undergone surgery. During the bail hearing, it emerged that the victim had been taken to Nairobi Hospital, a private medical facility, by the accused, who also paid the deposit required by the institution.

The Court also received a pre-bail report prepared by the Deputy Director, Probation and Aftercare. The report noted that the victim was afraid for his life and future. Accordingly, the victim’s family members were opposed to the release of the accused person on bond. However, among the concerns the victim’s family had was on his treatment. The victim’s family further acknowledged that the victim and the accused were well known to each other, as well as the “…accused’s kind gesture of supporting the treatment of the victim considering that they would not support that level of treatment.” At page 23 of the ruling, the Court stated, “…I have greatly agonised over one issue which the prosecution and the defence have taken diametrically opposed views, the medical attention the victim is receiving.”

Reading the ruling, one would safely conclude that the Court came to the conclusion that the medical condition of the victim was a relevant factor in determining the question of bail. The question then arises, if the medical condition of the victim was relevant, why did the Court direct the accused to meet the costs of the victim’s treatment?

Critics of Hon Andayi’s ruling launched a three-pronged attack: payment of bail money through instalments; receiving account, i.e. does bail money go to the Exchequer?; access to the funds by the injured party.

What the critics appear not to have addressed themselves to is the immediate medical needs of the victim.

In examining whether payment of bail through instalments was proper, it is crucial to look at the definition of the term bail. Prof P.L.O Lumumba in his book, ‘Criminal Procedure in Kenya’, defines bail as “… as an agreement between the accused (and his sureties as the case may be) and the court and that the accused will pay certain sum of money fixed by the court should he fail to attend his trial.” It is generally acceptable that the primary objective of bail is primarily to ensure that the accused attends his/her trial while not incarcerated. The Court should grant bail where it is satisfied that the accused will turn up for trial.

It should be noted that payment of bail by instalment has previously been ordered by the High Court. In the case of Republic vs Moses Kuria – Criminal Revision No. 276 of 2015, Hon. Justice Luka Kimaru released the Respondent on bond of Sh10 million with one surety of the same amount, or in the alternative cash bail of Sh3 million. The Judge granted the respondent seven (7) days to abide by the terms of the bond.

It is safe to conclude that there exists a precedent set by a Superior Court on payment of cash bail by instalment. In this regard, Hon Andayi’s order on the same was backed up by precedent of a superior court.

In relation to the question of payment of medical expenses of the victim, one has to look at whether the bail cash belongs to the Exchequer. Cash bail paid by accused persons to the Trial Court account is a refundable amount at the conclusion of the trial; it does not matter whether accused is convicted or not. Therefore the cash bail money paid to Court does not belong to Exchequer; the Exchequer does not need to access the money. The money belongs to the accused.

Contrary to the High Court Ruling in the revision application filed by Babu Owino, that the Trial Court failed to impose appropriate bond terms, a perusal of Hon. Andayi’s Ruling demonstrates otherwise. The Court imposed other conditions on the Accused which included that he provides two contact persons, of equal standing in society as the accused himself, to provide an undertaking that the sum of Sh10 million would be paid as directed by the Court. He was also required to deposit his passport and all other travel documents in Court. The two contact persons were also required to deposit their national identity cards or passports in court. The accused was further directed not to comment on the case at any forum.

The biggest bone of contention appears to be the fact that the accused was required to meet the medical expenses of the victim to the tune of Sh10 million. Does this infringe on the accused’s right to presumption of innocence?

From the submission made before the Court, the accused admitted to taking the victim to Nairobi Hospital and paying the deposit as required by the hospital management. At page 23 of the Ruling, Hon. Andayi stated, “So far the submissions from the accused person are that he is the one who is meeting the medical expenses of the victim. They produced a receipt for the payment of Sh600,000/= to the Nairobi Hospital.”

This appears to have been the basis of the Court’s direction to the accused to pay for the medical bills incurred by the victim; it was not on the Court’s own motion. At Page 24, the Court pointed out that “…the victim’s relative …acknowledge the accused person’s kind gesture of supporting the treatment of the victim considering that they would not afford that level of treatment.”

However, the prosecution seems to have taken a negative view of the fact of payment of the medical bills and termed it as a sign of impunity. But it did not offer any alternative treatment of the victim. As already pointed out, a relevant consideration is the victim’s medical treatment and the prosecution appears not to have addressed itself to the issue.

Section 4(1) of the Victims Protection Act requires a court, administrative body or a person performing any function under the Act to respect and uphold the values and principles in the Constitution and in particular, be guided by the provisions of Article 10, 27(4), 47, 48, and 49 of the Constitution. Article 10(2)(b) of the Constitution provides national values and principles of governance to include human dignity. Medical treatment is certainly a part of human dignity.

Section 4(2)(c) of the Victims Protection Act requires a court, administrative authority or a person performing functions under the Act to ensure that the victim’s dignity is preserved at all stages of a case involving the victim, from the pre-trial to post-trial phase. In the instant case, the Court was required by the Act to ensure that the victim’s dignity is preserved at all stage, including the bail hearing stage, which is a pre-trial stage.

Section 11(1) of the Victims Protections Act requires that any person dealing with a victim shall ensure that the victim shall immediately be secured from further harm before any other action is taken in relation to the victim. Section 11(2)(c)(i) further provides that the action contemplated in sub-section (1) shall include urgent medical treatment for the victim. Does ‘any person’ include the Court? I submit that considering the entire spirit of the Act, which is to protect the victim, any person does include the Court, which had to ensure that the victim received adequate medical attention.

From the ruling, the Court seems to have agonized over the issue and at page 25, stated, “In my considered view, what would be best for this young man is to give him reassurance, the best reassurance that he can regain the use of his limbs … For now, this is only possible to enable him recover. The person who is ensuring that he gets this treatment unfortunately is the accused person. Detaining the accused person would be tantamount to pulling back the treatment this young man is receiving. This Court has not been told of any other means by which he can continue to receive this treatment.”

The Court further addressed the question as to whether the accused person was duping the court in order to be granted bail. The Court stated “However in order that the accused person’s gesture was not just to hoodwink the public and the court into granting him bond I will concretize it into a court order and therefore grant him bond on the following grounds…”

Justice Kimaru, in the revision application filed by the accused, was of a contrary opinion in regard to payment of medical expenses. The Judge stated “… From the submission made, it is evident that the Applicant is paying the victim’s medical expenses, not out of sympathy or charity, but with an eye to securing a favourable determination from the court. The trial court therefore formed the view that unless the Applicant was compelled to continue supporting the treatment of the victim, then probably, and in all likelihood, the Applicant would stop providing financial support.”

The Honourable Judge further held, “This Court notes that the decision by the Applicant to pay for the medical expenses of the victim cannot be compelled through the criminal process unless the Applicant admits to the offence…The Applicant can continue supporting the hospitalisation of the victim as a moral obligation until otherwise compelled by court of law.”

A perusal of the Judge’s ruling reveals the Court did not address itself to the various provisions of the Victims Protection Act and Article 10(2)(b) of the Constitution. If the High Court had considered the provisions, would it perhaps have come to a different conclusion?

As to whether the decision by Hon Andayi and subsequent decision by the High Court meet the legal threshold, the jury is still out.