Babu’s attempted murder case bail reduced to Sh5m
Bernice Mbugua @BerniceMuhindi
The High Court yesterday quashed an order by a magistrate’s court directing Embakasi East MP Paul Ongili, alias Babu Owino, to pay the hospital bill of Felix Orinda popularly known as DJ Evolve.
Babu, who was on January 20 charged with attempting to murder the DJ by shooting him in the neck at B Club in Kilimani, Nairobi, on January 17 will now pay the bill as a ‘moral obligation’.
“It is apparent that the trial court was influenced by the fact that the victim was still undergoing treatment at the hospital. However, it should not have been the only consideration,” ruled Justice Luka Kimaru.
Babu had been released on a Sh10 million cash bail which was to be used to settle Orinda’s medical bill while he is still admitted in hospital and subsequent treatment upon discharge.
The sum was to be deposited in court in four equal installments of Sh2.5 million. So far he had paid Sh1.9 million.
Justice Kimaru, however, reviewed the terms and released him on Sh5 million cash bail or a bond of Sh10 million with two sureties of the same amount. He detained him until he paid the extra Sh600,000.
The judge noted that it was evident from the submissions made, Babu was still paying the victim’s medical expenses not out of sympathy or charity but with an eye to securing a favorable determination from the court.
According to the judge, the magistrate being human, was probably moved by the serious injuries the victim sustained and the specialised treatment that he requires to regain his health.
“This court, however, notes that the decision of the applicant (Babu) to pay medical expenses of the victim cannot be compelled through a criminal process unless the applicant admits to the offence,” he said.
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“The compulsion can only emanate from a civil process which is beyond purview of the criminal court.
The applicant can continue supporting the hospitalisation of the victim as a moral obligation until otherwise compelled by a court of law,” he ruled.
Justice Kimaru ruled that the magistrate’s court fell in error when it failed to impose appropriate bond terms once it found that Babu qualified to be released on bail pending trial.
The court agreed with Babu that the prosecution did not provide evidence to support its assertion that there were compelling reasons not to release him on bail pending trial.
“The court upholds that the prosecution did not establish that the applicant will fail to attend court when he will be required to do so during trial. Being a public official, he has more to lose if he fails to attend court,” he ruled.
The judge ruled that Babu’s passport should continue being deposited in court until conclusion of the trial or until orders of the court.
Babu had filed an application to review his bail terms claiming the magistrate shifted the burden of proof to him in total contravention to the constitutional protection of the principle of presumption of innocence.
According to the MP, the Chief Magistrate while setting his terms of bail set extremely high terms of cash bail yet he had voluntarily started assisting the victim in meeting the medical expenses and had pledged to continue doing so not as an admission of guilt but out of his genuine concern for the victim.
The Director of Public Prosecutions on the other hand wanted the bail terms cancelled arguing that the lower court erred in law when it granted Owino bail.
According to DPP, there was uncertainty as to what bail terms were imposed by the court and the issue of the victim’s medical expenses seemed to have influenced the court into giving orders that were not recognised by the law.
The case at the magistrate’s court will be mentioned on March 20.
