[2023] KEHC 25773 (KLR)

Fatuma & another v Republic (Criminal Case 16 of 2023) [2023] KEHC 25773 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25773 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Case 16 of 2023

DR Kavedza, J

November 29, 2023

Between

Zainab Wahu Fatuma

1st Applicant

Hawa Wanja Omar

2nd Applicant

and

Republic

Respondent

Ruling

1. The accused persons were jointly charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code, CAp 63 Laws of Kenya. The particulars of the offence are that on 20th May 2023, at around 5. pm, at Ndwaru Area within Waithaka in Dagoretti Sub-County jointly with others not before court murdered Fatuma Wanjiku Omar. They pleaded not guilty.

2. Vide a chamber summons dated 21st August 2023, they applied to be released on reasonable bail/bond terms pending the hearing and determination of their case. The application is supported by an affidavit sworn by the 1st applicant. She averred that she is the sole breadwinner in her family. Her family has been suffering since her incarceration and that she is the sole breadwinner. She is a student at Catholic University of Eastern Africa and is scheduled to resume her studies in September 2023. She urged the court to grant the orders sought.

3. On 10th August 2023, PC Dennis Were filed an affidavit containing grounds the prosecution believe constitute compelling reasons not to release the accused persons on bond. It was contended that most of the prosecution witnesses are relatives of the accused persons. In addition, they have been living in the same premises and are apprehensive that the witnesses may be intimidated by the accused persons against testifying. In addition, it was contended that there is the apprehension that they will interfere with prosecution witnesses if released.

4. I have considered the application, the response, the written submissions, and the pre-bail report on record.

5. Although the accused persons face the grave charge of murder; they are still deemed innocent and are entitled under article 49 (1) (h) of the Constitution to bail pending trial unless there are compelling circumstances.

6. The overarching objective of bail is to ensure the accused gets his liberty, but also attends his trial. The prosecution cited three grounds on which they opposed bail; possibility of interference with witnesses; and the safety of the accused persons.

7. Applying the test, the question is whether, the prosecution has proved compelling reasons not to release the accused persons on bond? The investigating officer in his affidavit has stated that the anger against the accused persons is high from other family members. He is apprehensive that the family may injure the accused persons if released on bond.The defence has brushed off the allegations as mere perceptions.

8. In any case, it is the duty of the state to ensure safety and security of its citizens including the accused persons. The police should take appropriate measures to ensure security of the accused persons. I therefore find the argument that the accused be detained for their own safety and security to be without any legal or factual basis and I reject the same.

9. The prosecution alleges likelihood of interference with prosecution witnesses. On this ground the court in R v Jaktan Mayende & 3 others, stated that:“- In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice; undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the Preamble to the Constitution of Kenya 2010……Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give schewed evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.”

10. Proven interference with witnesses is an affront to the administration of justice and therefore a compelling reason contemplated by article 49 (i) (h) of the Constitution. Accordingly, the specific instances of or likelihood of interference with witnesses must be laid before the court with such succinct detail or evidence in support thereof as to persuade the court to deny the accused bond on this ground. More jurisprudence on the point is found in R v Dwight Sagaray & 4 others, [2013] eKLR, where the court stated that: -“For the prosecution to succeed in persuading the court on these criteria, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect, incriminating communication between the accused and witnesses; close familiar relationship between the accused and witnesses among others.”

11. The arguments presented on interference with witnesses remind of two pertinent matters. One, protection of witnesses and victims of crime. And, protection of the integrity of the trial and criminal justice process. Under the law, the court has a duty to give effect to the rights of victims expressed in section 10 of the Victim Protection Act No. 17 of 2014, as follows: -10 (1)a victim has a right to: -(a)Be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;(b)Have their safety and that of their family considered in determining the conditions of bail and release of the offender; and(c)Have their property protected.

12. Interference with witnesses undermines the criminal justice system and dents the integrity of the criminal process; in turn interference with the administration of justice, and prejudice to the trial. Thus, it is the duty of the court to preserve the integrity of the trial. In this regard, I am persuaded by the reasoning of Lesiit J in R v Fredrick Ole Leliman & 4 Others, Nairobi Criminal Case No. 57 of 2016 (2016) eKLR where she succinctly stated that: -“Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that accused may interfere with the evidence; or may endanger and individual or individuals or the public at large; likelihood the accused may commit other offences. In this instance where such interferences may occur the court has to determine whether the integrity of the criminal process and the evidence may be preserved by attaching stringent terms to the bond or bail term; or whether they may not be guaranteed in which case the court may find that it is necessary to subject the accused to pre-trial detention.”

13. In the present case the prosecution stated in the affidavit in objection of bond the accused is likely to interfere with prosecution witnesses who are close family members and relatives. Also, these witnesses also reside in the same premises. It is more likely that the vulnerable witnesses may be scared stiffly by the presence of the accused amongst them.

14. The court must therefore, strike a perfect balance which ensures that the trial is not impeded by acts of interference with witnesses, but at the same time, upholding the rights of the accused to fair trial (K K K v Republic [2017] eKLR)

15. In conclusion, the court finds that a compelling reason has been established; likely interference and intimidation of witnesses especially the close relatives owing to the circumstances under which the offence was committed. There is compelling reason to keep the accused persons in custody at least until the key prosecution witnesses have testified. Accordingly, the accused persons are denied bail. In case of a future application for bail, it will be considered on its merit and the circumstances of the case obtaining at the time.

16. The Court directs that the hearing of this case be on the basis of priority. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF NOVEMBER, 2023. D. KAVEDZAJUDGEIn the presence of:Mr. Mulama for the stateMs. Kimanzi h/b for Weche for the accused persons.Naomi/Nelson C/A