[1997] KEHC 3 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Misc. Crim. Appli. 52 of 1997

EMMANUEL KARISA MAITHA................................ APPLICANT

Versus

REPUBLIC............................................................. RESPONDENT

RULING

Before me is a Miscellaneous Criminal Application No.52 of1997. It has been brought by Mr. Emmanuel Karisa Maitha (hereinreferred to as the Applicant) through his advocates M/s. Madzayo &Madzayo & Company Advocates.

The State is represented by Mr. Gacivih, Senior PrincipalState Counsel, Mombasa.

The application is one for bail pending the determination ofa trial.

On the 5th of September, 1997, the Applicant filed a

certificate of urgency dated the 4th of September, 1997 whereby the

advocate certified the matter as urgent on the grounds that:-

" The application filed herein is

urgent and prays that the same be heard as amatter of urgency on the grounds that theApplicant herein has fallen sick and secondlyhas been in custody for unreasonable period oftime."2

During the submission of the main application the advocate forthe Applicant mentioned nothing of the Applicant's ailment nor ofhis long and unreasonable period in remand.

This fact being brought up by the State Counsel, the courtpermitted that the Applicant be examined as to his medical status.A report was submitted whereby it was quite clear from the saidreport that the Applicant was not ill.

He was of course suffering from stress, failure of sleep andhad had a history of an accident 5 years ago.

It is unfortunate that the advocate for the Applicant misledthe court on this when in fact the right to be heard is availableto all parties, especially so in criminal matters where personalliberty is in issue.

I will examine the application on merit.

The notice of motion dated 4th of September, 1997 and filed on

the 5th of September, 1997 prays for the following orders:-

"That this Honorable Court be pleased toadmit the Applicant to bail pending thehearing and final determination of MombasaChief Magistrate's Court, Criminal CaseNo.2535 of 1997 between the Republic -versus-Emmanuel Karisa Maitha. "

The said application was supported by the affidavit -of the Applicant's advocate which deponed that the trial Magistrate had

refused to release the Applicant on bail and as such prays for this court to do so.

A brief summary of what occurred in the lower court is asfollows and according to the attached proceedings of the lowercourt:-

The Applicant was charged with two counts before the ChiefMagistrate's court.

In Count I:

Being in possession of offensive weaponscontrary to Section 89(1) of the Penal Code.

That on the 18th day of August, 1997, atProvincial Police Headquarters Kizingo inMombasa District within the Coast Province,was found in possession of offensive weaponsnamely, one panga, one knife, in circumstanceswhich raised a reasonable presumption thatsuch offensive weapons were intended to beused or had been used in a manner or for apurpose prejudicial to public order.

Count II:

Preparation to commit a felony contrary toSection 308(1) of the Penal Code.

On the 18th day of August, 1997 at ProvincialPolice Headquarters Kizingo in MombasaDistrict within the Coast Province was foundarmed with offensive weapons namely one panga,one knife in circumstances that indicated thathe was so armed with the intention to commit afelony, namely, grievous harm."

The Applicant appeared before the Chief Magistrate on the 28th of August, 1997, He pleaded not guilty to the charge on both counts,

Mr. Madzayo then appearing stated that he had instructions toapply for bail. The prosecution stated:-

"We don't object the release of the Accused onbond."

The Applicant was remanded to the 4. 9.97 when the ChiefMagistrate indicated he would reconsider the said application.

On the 4. 9.97 Mr. Madzayo for the Applicant renewed theapplication for bail and indicated that his client would turn upfor trial. That it was his client's constitutional right to bail.

In his response the prosecution stated:-

"I do not have instructions to object torelease of Accused on bail."

The. Chief Magistrate then made a ruling in which he deniedbail pending the trial. His main reason is that the offence isextremely serious. That there has been a widely published attachand/or disturbances on police stations with the loss of lives.That he recognizes that the Applicant is innocent until provedguilty, that he is a Kenya citizen, but that the decision to grantbail is a judicial one. That there was the wider interest of thecountry to be looked at. With that bail was denied. An earlyhearing date was thereafter given. This hearing date of the22. 9.97 was given with a mention date of 18. 9.97.

In his address before me the advocate for the Applicant statedthat he comes to this court to seek prayers that the Applicant bereleased on bail.

The offences charged are bailable. The Applicant was deniedbail because the trial Magistrate connected the incident of theLikoni disturbances that recently occurred to the Applicant.

The Applicant was arrested at Kizingo and had no connectionwith the Likoni incident.

That the Applicant has a constitutional right to bail and assuch should be given that bail.

The requirements that the Applicant ought to meet are that:-

1) The offence is bailable.

2) The Applicant is a citizen of Kenya.

3) He will not interfere with witnesses.

4) He will not abscond.

He relied on the case of NJEHU GATABAKI -vs- THE REPUBLIC,HCCR.C. 43 of 14. 2.93 at Nairobi, whereby this court has powers toaddress the issue as raised in Section 123(3) of the CriminalProcedure Code.

The case of GEOFFREY TATUNGU NJUGUNA NGEGI & OTHERS -VS- R..Cr. A. 261 of 1992, which was relied on in the Njehu Gatabaki caseabove emphasized the attendance of the Accused to court.

He also relied on Section 77(2)(a) of the Constitution of

Kenya.

"Every person who is charged with a criminal

offence-

a) shall be presumed innocent until heis proved guilty."

JAFFER -Vs-_ R. , 1973 E. A. 39.

Principal laid down must be supported by facts. In the abovecase the trial Magistrate had accepted the submission that theApplicant was likely to interfere with the witnesses. There wereno facts to support this.

There is also no evidence, said the advocate, for theApplicant that his client would abscond.

The advocate for the prosecution in reply stated that thecourt is a creature of the Constitution. That the rights ofsociety vis a Vis the individual is paramount. In this particularapplication he objects to the Applicant to be released on bailpending the determination of his trial.

He prayed that the court take judicial notice of certainaspect of society and the circumstances prevailing at the moment.

As to the delay the case was coming for hearing on 18. 9.97 -but the hearing is actually on the 22. 9.97. There would thus be nodelay in the hearing of the Applicant's case.

In the case of JAFFER -vs- R. - the authority relied on by theApplicant was not relevant.

The grounds of urgency have been abandoned .

He prayed that this application be dismissed.

My task in this application is to decide whether or not bailshould be granted to the. Applicant.

I have stated earlier that there are no medical grounds to berelied on nor the arguments of inordinate delay.

What the Applicant is seeking is to be released on bail

pending the determination of his trial. This is prayed for under

Section 123(3) of the Criminal Procedure Code that reads:-

"The High Court may in any case, whether ornot an Accused person has been committed fortrial , direct that the person be or NOT beadmitted to bail or that bail required by asubordinate court or police officer bereduced."

From the ruling of the Chief Magistrate dated the 4th ofSeptember, 1997 the said Chief Magistrate denied bail to theApplicant, The main ground for such denial is that there has beensome police station burnt, police officers killed and insecurity assuch circumstances would not permit the Applicant to be released onbail.

(The police too are anxious he be released on bail).

I must take judicial notice that a few weeks back there was arandom attack that occurred in the Likoni area of Mombasa. Thisincident has caused alarm and insecurity. It seems that based onthis incident the Applicant has been denied bail.

Although the prosecution in the lower court did not object tothe application for bail made by the Applicant they did object tothe same at the High Court level through the State Counsel.

The same reasons were put forward. That there aredisturbances in recent weeks which points to the Applicant. If therelease of the Applicant is allowed no indication as to what effectit would have on society.

I find the arguments put forward by the State Counsel and theChief Magistrate difficult to understand.

If the Applicant is involved in the recent Likonidisturbances, then the prosecution should state so and declare thatthe charge before court is "a holding charge".

If they required more time to investigate the incident beforethe charge was put forward an apprehension report ought to havebeen filed.

I find that the charges or offence that should be broughtagainst a suspect is up to the police on condition that it issupported by facts and proper investigations.

When one is to be denied bail it is on grounds that he islikely to abscond, that he may interfere with witnesses, that hewill refuse to surrender to custody when called for. None of thesegrounds have been relied on by the prosecution.

The ground relied on is an incident that occurred in Likoni.This incident is connected with the Applicant. If this is so, thenspecific charges should be brought against him on the same. Clearfacts should be given to the court.

This brings us to the question - If the Applicant is releasedon bail, will he cause another out-break of violence? Whilst incustody or on bail has he control over the violence?

I find that in the absence of any source of information putbefore the subordinate court the law must guide this court.

Under Section 77(1) of the Constitution of Kenya it reads:-

"If a person is charged with a criminaloffence, then, unless the charge is withdrawn,the case shall be afforded a fair hearingwithin a reasonable time by an independent andimpartial court established by law.

2) Every person who is charged with a criminal

offence -

a) SHALL be presumed to be innocentuntil he is proved or has pleadedguilty."1

The offence before me is bailable. I hereby will allow theapplication as prayed with the following conditions:-

That the Applicant be and is hereby released on bail ofKshs.2,000,000/- with two sureties for the like sum.

That he is to report to Central Police Station every Monday,Friday and Wednesday at 9. 00 a.m. until the determination of thetrial,

DATED this 7th day of September 1997 at Mombasa

M. ANG’AWA

JUDGE