[2025] KEHC 4727 (KLR)

MA v Republic (Criminal Case E079 of 2024) [2025] KEHC 4727 (KLR) (Crim) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4727 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E079 of 2024

MW Muigai, J

April 3, 2025

Between

MA

Accused

and

Republic

Prosecutor

Ruling

1. The Accused person MA was/is charged with the offence of murder contrary to section 203 as read with Section 204 Cap 63 Laws of Kenya.

2. The particulars of offence are that on 19/11/2024, at Mosque area in Soweto, Kayole Sub County, within Nairobi Cunty murdered Ibrahim Mauda.

3. On 19/12/2024, Presiding Judge Criminal Division Hon K Kimondo J gave directions that the Accused person was not to plead or comments on the charge at the stage as mental assessment had not been done yet. The Accused person was to be escorted to the Mbagathi District Hospital or any other Government Facility for psychiatric test at the earliest.

4. The Deputy registrar was to appoint Legal Counsel and plea-taking was deferred to 15/1/2025 and the Accused person would be held at Langata Women’s Prison Nairobi.

5. On 15/1/2025 the Accused person confirmed that she was taken to hospital and the Report was ready but had not been relied to Court.

6. On 16/1/2025, Counsel for the Accused person, Mr Wachira was appointed through Pro Bono Committee led by Deputy Registrar Criminal Division.

7. On 21/1/2025, the Mental Assessment Report dated 20/1/2025 was presented in Court and it confirmed the Accused person fit to plead.

8. The Information/Charge was read to the Accused person in Kiswahili by the Court Assistant and the Accused Person denied the charge. The Court entered plea of not guilty on the offence of murder and particulars of the offence for the Accused person.

9. Mr Wachira for the Accused person informed the Court, the Accused person is an orphan, a single mother of a 10 year old child and was on anti-retroviral medication and sought the Court to grant favorable and reasonable bond terms to enable the Accused person to take care of her child and continue with medication.

10. Ms Ogweno for ODPP/State opposed grant of bail/bond terms and were in the process of filing the application/affidavit. They were still looking for the child.

11. The Court gave directions; the Investigation Officer was to file an Affidavit and serve Defense Advocate who was at liberty to respond. The Probation Officer was to prepare Pre-Bail Report. The Director of Children services was to file progress/status report of the child.

12. The Affidavit to Oppose bond was filed by CPL Luke Rotich, DCI Kayole, The Accused person was cohabiting with the deceased and after the incident the Accused person fled with her 10-year-old daughter. The Deceased was left locked in the house fighting for his life as he screamed for help from neighbors.

13. The I/O is apprehensive if the Accused person is admitted to bond at this stage amongst the deceased’s siblings and neighbors is likely to instill fear, cause trauma and mental anguish on them as they responded to distress. The accused person is a flight risk and the 10 year old daughter who was/is an eye witness to the incident was not traced.

14. The Pre Bail Report presented detailed personal history and family background of the Accused person. She is an orphan with a lost brother and friend who is looking after her daughter. Her friend could look for security if the Accused was released on bond. The Victims family of the deceased are opposed to grant of bail/bond to the Accused person. The Community ties/local administration pointed out the Accused person had no history of criminality. Her background and personal history could not be verified and efforts to trace her ancestral home proved futile as she gave conflicting information. She is a flight risk and has no fixed abode.

15. The Director of Children Services did not present a report to confirm the child’s whereabouts safety security and well- being.

16. The ODPP filed written submissions on 3/3/2025 reiterated the Investigation Officer’s position, the Accused person is a flight risk with no fixed abode nor employment. There is real apprehension the Accused person interfering with Prosecution witnesses. The ODPP relied on case of Republic vs Fredrick Ole Leliman & 4 Others [2019] eKLR to fortify its position.

Determination 17. Right to bail pending trial is not absolute; bail can be denied if there are compelling reasons to warrant denial of bail. Article 49(1) (h) of the Constitution provides:“an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

18. Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence.The duty lies on the prosecution to demonstrate compelling reasons justifying denial of bail. Determining compelling reasons is a matter for judicial discretion. Paramount consideration remains -to ensure the attendance of the accused person

19. Determination of bail applications entails balancing the rights of an accused person and the victims with the interests of justice and the rights of others.

20. Accused person is admitted to bond at this stage amongst the deceased’s siblings and neighbors is likely to instill fear, cause trauma and mental anguish on them as they responded to distress. The accused person is a flight risk and the 10 year old daughter who was/is an eye witness to the incident was not traced.the Accused person is a flight risk with no fixed abode nor employment.There is real apprehension the Accused person interfering with Prosecution witnesses. These views by Prosecution have not been controverted by any other evidence on record. The issue of the 10 year old child has not been established save for allegation by parties during investigation. The Children Report was not availed to confirm the child’s existence safety and security. The Accused person’s medical condition that necessitates ARVs was not established by medical examination and report.

21. In Republic vs Muneer Harron Ismail & 4 others, H.C. Criminal Revision No. 51 of 2009, Warsame J. stated as follows:“In deciding whether or not to grant bail, the basic factor or denominator is to secure the attendance of the accused person to answer the charges brought against him. The court has to take into consideration various factors and circumstances; and one paramount consideration is whether the release of the individual will endanger public security, safety and the overall interest of the wider public.”

22. The Bail & Bond Guidelines 2015 prescribe the following issues to be considered in grant of bail or bond. These are; the nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty. The strength of the prosecution case. Character and antecedents of the accused person. The failure of the accused person to observe bail or bond terms. Likelihood of interfering with witnesses. The need to protect the victim or victims of the crime. The relationship between the accused person and potential witnesses. Child offenders. The accused person is a flight risk. Whether accused person is gainfully employed. Public order, peace or security. Protection of the accused person.

23. In the case Felity Sichongi Nyangesa vs Republic (2014) eKLR where it was held that:“where there is evidence of the accused interfering with witness’s that was compelling reasons not to exercise discretion in favour of the applicant.” (Emphasis added)

24. The Prosecution has proved possibility of interference with witnesses especially the 10 year old child the Accused person is said to have fled with and who is said to be an eye witness to the incident.

25. Secondly, the Pre-bail Report disclosed the Accused person’s family back ground and contact was not established and version was contradictory. The Accused person lacks fixed abode employment family ties and on release on bond would likely be a flight risk.

26. For now this Court finds these 2 aspects compellable reasons/grounds to deny the Accused person bail/bond at this stage. The hearing of the matter shall be expedited. Bond/Bail review to be considered after the immediate neighbor(s) testify and/or child is found.

RULING DELIVERED SIGNED DATED IN OPEN COURT IN CRIMINAL DIVISION MILIMANI-NAIROBI ON 3/4/2025. M.W. MUIGAIJUDGE