[2022] KEHC 10140 (KLR)

Munyinyi v Republic (Miscellaneous Criminal Application 033 of 2019) [2022] KEHC 10140 (KLR) (Crim) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10140 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 033 of 2019

LN Mutende, J

May 4, 2022

Between

Joenest Mwangi Munyinyi

Applicant

and

Republic

Respondent

Ruling

1. Joenest Mwangi Munyinyi, the Accused, seeks to be released on bail pending trial following arraignment for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code(PC). Particulars of the charge are that on 6th October 2020 at around 2000Hrs at Huruma area, Starehe Sub County, within Nairobi County murdered Lincon Munyi.

2. The application is opposed by the State/Respondent. No. 66830 PC Richard Kalaine, the Investigating Officer swore an affidavit where he deposed that the deceased was the accused person’s step-son and witness to be called are the biological children of the accused, persons that he will interfere with if released on bond. Another witness who may be easily influenced is the accused person’s sister. That considering seriousness of the offence, the accused who shared a house with his wife, the mother of the deceased and their biological children with no other known or fixed place of abode may be a flight risk.

3. In response, Margaret Wanjiku Munyinyi who described herself as a biological mother of the accused deponed that the accused resided in two (2) single rooms at Huruma that she had given him, which she rented for his own upkeep and that of his children and was willing to accommodate him at their home in Murang’a where he would live with his entire family and undergo counselling.

4. Mr. Guchuki, learned counsel for the accused urged that the accused has a fixed place of aboard at Huruma Plot No. H3 where he has been staying with his children. That the mother to the children has been an absentee mother, and, that the mother of the accused can take care of him while in the village therefore he will not interfere with the witnesses.

5. Mr. Okeyo, learned counsel for the State argues that there are compelling reasons that call for the accused person being denied bond. That the incident depressed witnesses who are children of tender age and if the accused is released on bond they will be intimidated. That he lived in a rental house and has not disclosed what he does in life therefore is a flight risk.

6. I have considered rival averments of both the prosecution and the defence Counsel.

7. Article 49(1) (h) of the Constitution provides that:To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

8. A reading of that provision of law indicates that the right to bail is not absolute. Therefore, he who asserts existence of compelling reasons that require incarceration of the accused person must prove the justification for such an action.

9. The Constitution is silent on what constitutes compelling reasons. The Black’s Law Dictionary defines “compel” as“To cause or bring about by force, threats or overwhelming pressure”

10. In the case of Joktan Mayende & 3 others vs. Republic(2012) eKLR, the court was of the view that the term “compelling reasons is:“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.”

11. Section 123A of the Criminal Procedure Code (CPC) gives factors to be taken into consideration, it provides thus:(1)Subject to Article 49(1)(h) of the onstitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—(a)The nature or seriousness of the offence;(b)The character, antecedents, associations and community ties of the accused person;(c)The defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;(d)The strength of the evidence of his having committed the offence;

12. The stated compelling reasons alluded to by the State were that the accused was a flight risk and likely to intimidate/interfere with witnesses if released on bond.

13. A social inquiry was carried out by the Probation Officer who filed a Report on bail. It was established that the accused was taking alcohol and abusing narcotic drugs (Marijuana). It was opined that considering the seriousness of the offence and the punishment to be meted out if the accused were to be found guilty, this was an incentive for the accused to abscond. That his mother and sister Beatrice were willing to stand surety for him and would ensure he relocates to their home in Murang’a.

14. However, the officer failed to trace the victim’s mother therefore this court has no information that can help it reach an informed decision regarding the sentiments of the victim.

15. It has been argued that if released the accused is likely to flee this court’s jurisdiction to avoid being taken through the trial process. No doubt the offence the accused is facing is serious and if convicted he may suffer death. The purpose of bail is to ensure personal attendance of the accused throughout the trial. This therefore ensures his liberty is not interfered with until proven guilty.

16. Looking at the report filed by the Probation Officer,regarding community ties, the accused has two supportive family members a mother and sister who are willing to post bail in his regard. However, his other siblings who are stated to be seven (7) in number seem not to have been interviewed. Since the risk to public safety has not been called into question bail may be set but this would call for stringent terms being called for.

17. On the question of interference with witnesses. It is not in dispute that eye-witnesses were the accused’s sister and biological children who recorded statements and are to be called as prosecution witnesses. It is notable that DW1 the sister of the accused resides at the same residence that the accused used to live. Other eye witness are the accused person’s biological children. Although it is alleged that if released the accused will relocate to Murang’a, in the affidavit deposed by their grandmother, she avers that the accused’s wife was an absentee mother most of the time and therefore if the accused is not released on bail the children stand to suffer in his absence. This clearly means that once released the accused will resume his duty of parental responsibility. This being the case the children who are witnesses herein may be intimidated. Even if there may be no direct interference, the children would be afraid of testifying against him or may think of giving evidence that is favourable to him. This may also be the case in respect of the sister who is a witness.

18. In the case of Republic vs. David Ochieng Ajwang alias Daudi & 11 others (2013) eKLR, Sitati J stated that:“…… It is not in dispute that all the accused persons hail from the same locality as the witnesses, and this being the case, the danger of such witnesses being driven to a corner by the presence of the accused persons so soon after the ghastly death of the deceased persons is a real possibility. In addition, the fact that the accused persons are so many is likely to send a cold shiver down the spines of such witnesses and corner them into resigning not to appear in court during the hearing of the case even if the accused persons turn up. In a nutshell there will be no witnesses to testify….”(Emphasis ……)

19. From the foregoing, it is apparent that there is a real apprehension of likelihood of interference with the witnesses. For the reasons given, I decline to grant orders sought at this point. However, the application may be re-considered after key witnesses will have testified.

20. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF MAY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Gichuru holding brief for Mr. Gichuki for AccusedMr. Okeyo for the stateCourt Assistant – Mutai