[2017] KEHC 2186 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE NO. 15 OF 2017

FRANCIS MULI MUTETI………..……………............APPLICANT

VERSUS

REPUBLIC……………………………………........RESPONDENT

RULING OF THE COURT

1. Before this court is the applicant’s Chamber summons application dated 12th July, 2017 brought under Certificate of Urgency. The applicant seeks the following orders:

a. That the applicant herein, be released on reasonable bail and bond upon such terms and conditions as this Honourable court may deem just and expedient to impose pending the hearing and determination of this case.

b. That the court be pleased to make such orders as the ends of justice may require.

2. The grounds upon which the application is brought are;

i. The applicant is by law presumed innocent until proven guilty

ii. It is only fair and in the interest of justice that this application be granted.

iii. The applicant will suffer irreparable harm by having stayed in custody before the determination of the case.

3. The application was supported by an affidavit sworn on 12th July, 2017 by Francis Muli Muteti. He deponed that he was a Watchman at Mutungoni Academy within Machakos County, and his wife Mary Mutindi, four children and his mother Alice Katutu Muli were all dependent on him.

4. He further went on to say that being in custody would curtail his freedom and cause him irreparable harm since the trial was yet to commence, and he had a constitutional right to bond and bail. He undertook to avail himself to court whenever required to do so, without fail and to comply with such conditions as the court may deem fit and just to impose upon him.

5. In conclusion he told court that he believes there were no compelling reasons that would work against his release on bond bail. He asked court to impose affordable bond and bail terms since he would be depending on his relatives with meagre earnings as peasant’s farmers to raise his bail/ bond.

Replying Affidavit.

6. In opposing the application for grant o bail, RhodaMwikali Maweu swore an affidavit dated 1st August 2017 and filled on 12th August 2017. She told court she was the wife to the deceased and that the deceased was killed by persons who were very well known to her.

7. She went on to state that the accused after committing the act went on to brag in the area market that he would kill her since she was one of the key witnesses. She indicated that the accused together with others would visit her home at night looking for her, but luckily one of her nephews was present and when he saw him he run away.

8. Further she stated that the accused was out to kill her and due to fear she fled her home and unless the accused is denied bail, she would not be alive to testify. She annexed copies of OB extracts from her husband and herself marked “RMM 1 and 2. ’’

9. In conclusion she told court that it was not a secret since the accused had told several people about his intentions. The accused was with his two sons namely Mwanzia Muteti & Kitumbi Muteti when they committed the offence and the sons were still in hiding and therefore if released he would definitely assist them to disappear completely in an attempt to defeat justice.

Further Replying Affidavit.

10. The prosecution filed a Further Replying Affidavit sworn by C.1 George Kipkoros No 232591, dated and filed on 4th September 2017. In opposing the application as one of the investigating officers he stated that the accused after committing the offence of murder on the night between 19th and 20th October, 2016 fled to an unknown destination until when he was finally accosted on 3rd April 2017.

11. He went on to state that the accused’s conduct before the occurrence of this offence is that he had threatened to set the deceased’s house ablaze. The deceased and his wife reported the incident vide OB No.20/18/10/16 annexed and marked “GK-1’’.

12. He told court that if the accused is released on bond he will be a threat to the wellbeing of the witnesses and more specifically the accused’s wife who was a key eye witness. That though the offence of murder is bailable, the grant of bail is not absolute but a matter of discretion by court which should be handled on a case to case premised on any compelling reasons raised by the prosecution.

13. In conclusion he deponed that the accused would interfere with the prosecution witness more specifically Rhodah Mwikali Maweu.

Oral Submissions

14. By consent the parties agreed to canvass the application through oral submissions in court. Mr. Kituku for the applicant sought to rely on the grounds raised in the application and the supporting affidavit.

15. He went on to submit that paragraphs 3-9 of Rhodah Mwikali’s affidavit should be expunged since they refer to the guilt of the accused .He further stated that if Rhodah was apprehensive she should seek protection under the Witness Protection Program. He pointed out that the first OB of 18/10/2016 did not touch on the accused and in reference to the second OB of 1/8/2016 it had a subsequent later date of 19/10/16 and therefore it was erroneous since it was in the future.

16. Further he went on to submit that the claim that the accused had fled was not supported. He said that this court had no compelling reason not to grant the accused bond since it had powers to impose conditions to be complied with, such as ordering the accused to report to the DCIO periodically, since the accused is innocent until proven guilty.

17. Mr. Machogu for the prosecution referring to the affidavit sworn by the investigating officer submitted that the accused committed the offence on 19th October 2016 and he was arrested on 3rd April 2017 having been in hiding with other perpetrators. He went on to say that the prosecution was apprehensive that if the accused is granted bail he would interfere with the prosecution witnesses which would cause injustice to the deceased’s relatives.

18. He urged court to find that the prosecution had raised compelling reasons to deny bond to the accused. However he went on to state that the accused could be granted bail after the deceased’s wife, Rhoda Mwikali had testified. He prayed that court dismisses the application.

19. Mr. Kituku in response told court that there was no evidence that the accused fled after the incident and if anything, the court had the power to cancel the bond if there will be any interference with the witnesses. Further, there was no fear since Rhoda Mwikali had already deponed an affidavit.

Determination

20. I have carefully considered the law and the circumstances surrounding this case. I find that the circumstances of this case dictate against an order for bail/bond. It is clear to me that because of the conduct of the accused to the deceased’s family and relatives, it is very likely that the accused will interfere with the witnesses and consequently jump bond leading to injustice on the part of the complainant and her family. The accused committed the offence on the night of October 2016 and he was arrested on 3rd April 2017 having been in hiding with other perpetrators. There is therefore a likelihood that the accused might disappear or go back into hiding upon being released on bond/bail.

21. On the other hand the suit already has a hearing date set for 22nd November, 2017 which is in two weeks time. I am of the view that the accused will not in any way be prejudiced if bond is denied at this stage.

22. The Bail and Bond Policy Guidelines were formulated specifically to guide the police and judicial officers in the administration of bail and bond. The guidelines set out what the courts should bear in mind when considering an application for bail. They are similar to those set out under Section 123A of the Criminal Procedure Code. These general considerations are: the nature of the offence; strength prosecution case; character of accused and antecedents; failure by the accused to observe previous bail or bond; witness interference; protection of the victim; relationship between the accused and the potential witness(es); whether the accused is a child offender; whether the accused is a flight risk; if the accused is gainfully employed; public order; peace security; and whether there is need for the protection of accused person.

23. Under the guidelines the general principles which apply to questions of granting or denying bail or bond are also set out and these include the right of the accused to be presumed innocent; accused right to liberty; accused obligation to attend court; right to reasonable bail and bond terms; bail determination must balance the rights of the accused persons and the interest of justice and considerations of the rights of the victims.

24. In Republic –vs.- Danson Ngunya & Another [2010] e KLR, Makhandia J, (as he then was) stated that if the state wants the accused deprived of his right to be released on bond, then it (State) must satisfy the court that it would not be in the interest of justice to make an order granting bail/bond. The Prosecution has presented reasonable and compelling reasons for denial of bond at this stage. The accused could then review bond application once the evidence of vulnerable witnesses such as the wife of the deceased have testified.

25. In the premises and for the reasons above stated, the accused’s application for bail/bond pending trial is dismissed.

Dated, Signed and Delivered at Machakos this 7th day of November, 2017.

D.K. KEMEI

JUDGE

In the presence of:

Mburu for Kituku for the Applicant.

Machogu for the Respondent.

Kituva - Court Assistant

Musya holding brief