[2025] KEHC 3372 (KLR)

Maina v Republic (Criminal Case 13 of 2018) [2025] KEHC 3372 (KLR) (19 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3372 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case 13 of 2018

CW Githua, J

March 19, 2025

Between

James Mbugua Maina

Applicant

and

Republic

Respondent

Ruling

1. The applicant, James Mbugua Maina, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 7th September 2017 at Kagongo village, Gatanga sub-county in Murang’a County, the accused murdered Edith Wambui Mwangi.

2. The court record reveals that on 3rd July 2018 immediately after taking plea and denying the charges, the accused, through his then advocate on record applied to be admitted to bond or bail pending his trial. The application was contested by the prosecution, on grounds that his safety would not be guaranteed if he was released and went back to the locus in quo.

3. In a ruling delivered on the same date, Hon. Kimondo J concurred with the prosecution and held that a possibility existed that if released, the accused’s life may be endangered given palpable anger exhibited by members of his community and this amounted to a compelling reason to justify denial of bail to the accused. The learned judge consequently denied the accused bond but directed that he was at liberty to renew the application in future.

4. The applicant, through his current advocates, Ms. Lilian Marion Associate Advocates filed a fresh bond application vide a Notice of Motion dated 20th May 2024. In the application, he contended that he had a constitutional right to be admitted to reasonable bail or bond terms pending his trial; that he had a right to be presumed innocent until proven guilty; that he had a fixed place of abode and he was therefore not a flight risk. He also claimed that he lacked the capacity and intention to interfere with prosecution witnesses.

5. In addition, the applicant averred in his supporting affidavit that he had been in remand for nearly six years; that circumstances had changed over time and that he was now eligible to be admitted to bond pending his trial. Lastly, he pledged to abide by any conditions the court may impose as prerequisites to his admission to bail or bond.

6. The application was opposed by the respondent through a replying affidavit sworn by the investigating officer, PC Kelvin Mulwa dated 8th October 2024. PC Mulwa deposed that the security of the accused was still an issue since he hailed from the same locality as the deceased; that the deceased’s friends, neighbours and relatives were likely to avenge her death should the accused be released and resurfaces in their midst.

7. Further, PC Mulwa deposed that if released, the accused was likely to interfere with prosecution witnesses who included his children; that the accused was a flight risk and if released may abscond his trial given that he went into hiding after the offence was committed.

8. I have carefully considered the application and the affidavits sworn in support and in opposition thereto as well as the oral submissions that were made by each party during the hearing on 18th February 2025.

9. It is trite that under Article 49 (1) (h) of the Constitution, an arrested or accused person has a right to be admitted to bail or bond on reasonable terms pending charge or trial unless there were compelling reasons that would warrant the denial of that right. It is thus evident that the constitutional right to bond pending trial is not absolute but can be curtailed if the prosecution demonstrated existence of compelling reasons that would mitigate the exercise of that right.

10. Section 123 A (2) of the Criminal Procedure Code and The Judiciary Bail and Bond Policy guidelines 2015, provides both a legal and policy framework containing factors which should guide a court in the exercise of its discretion in determining whether or not the prosecution had established compelling reasons to justify denial of bail or bond to an accused person. These factors include; whether the accused person was likely to turn up for his trial or he was likely to abscond; whether he was likely to endanger the safety of victims, individuals or the public; whether he was likely to interfere with witnesses or evidence and whether it was in his interest to continue being detained in custody for his personal protection or in the public interest.

11. In this case, although the prosecution has maintained that the accused needs to continue being detained for his own safety as hostility on the ground towards him has not ceased despite the passage of time, I find this claim hard to believe considering that it is now about 7 years since the offence was allegedly committed and besides the deposition made by the investigating officer, no other evidence has been availed to this court to substantiate that claim. The prosecution did not, for instance, call for filing of a current pre-bail report which would have shed light on the current situation on the ground.

12. Regarding the claim that if released the accused was likely to interfere with prosecution witnesses who included his children, the court record shows that this case is now partly heard. Three witnesses have given their evidence including the accused’s two children. The prosecution has not claimed that the remaining three witnesses included accused person’s children and how, if at all, he was going to interfere with them, if released.

13. Another reason advanced by the prosecution in opposition to admission of the accused to bond is that he was a flight risk given that he went underground after the offence was committed and he was arrested in Nakuru on 11th April 2018, about 7 months later. The accused did not dispute this claim. The court record lends credence to this claim considering that it confirms that although the offence was allegedly committed on 7th September 2017, the applicant was only arraigned in court on 16th April 2018, about 7 months later.

14. In my view, from the above undisputed facts, it can reasonably be inferred that the accused was a flight risk and that if released, he was likely to abscond his trial. The risk of absconding may now be even greater given that the case is now partly heard and is nearing conclusion.

15. I must state at this juncture that although there are several factors that guide the court in determining applications of this nature, the overarching consideration is whether the accused, if admitted to bond would turn up for his trial or was likely to abscond. In this case, given the accused’s conduct described hereinabove, I am satisfied that there is reason to believe that if released at this stage, the accused was likely to abscond.

15. Having found as I have above, it is my conclusion that the prosecution has established compelling reasons to justify denial of the accused’s right to bond pending conclusion of his trial. I thus find that this application lacks merit and it is hereby dismissed.

16. Given the outcome of this application and considering that this case has unfortunately been pending for the last six years for reasons that are on record, the only just thing to do in the interest of justice is to take all reasonable steps to expediate its conclusion. Consequently, I order that going forward, hearing dates in this case will be fixed on priority basis.It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 19TH MARCH 2025. HON. C.W. GITHUAJUDGEIn the Presence of:The accusedMs. Githinji for the AccusedMs. Wambani for the stateMs. Susan Waiganjo, Court Assistant