[2022] KEHC 12986 (KLR)

Nyaga & 2 others v Republic (Criminal Case E009 of 2022) [2022] KEHC 12986 (KLR) (Crim) (14 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12986 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E009 of 2022

JM Bwonwong'a, J

September 14, 2022

Between

Patrick Muriuki Nyaga

1st Applicant

Brenda Gatwiri Kinoti

2nd Applicant

Josphat Sankale

3rd Applicant

and

Republic

Respondent

Ruling

1. The applicants are jointly charged with the offence of murder contrary to section 203 of the Penal Code’ (Cap 63) Laws of Kenya. The particulars of the offence are that on the night of 17th and January 18, 2022 at Hardcore club within Club East area Mihango stage within Kayole Sub-county, Nairobi county jointly murdered Chrispus Njenga Macharia.

2. The 1st accused, videa chamber summons dated April 13, 2022, applied to be admitted to bond/bail on reasonable terms. The application is supported by an affidavit sworn by him with the following being the major averments. The 2nd accused is his wife, who is also in remand. Since his incarceration, he has developed a growth on his back which needs specialized treatment. That he has a fixed abode with family ties and he is not a flight risk. He urges the court to release him on bail and undertakes to abide by the terms which the court may impose.

3. The 2nd accused vide a notice of motion dated March 18, 2022 also seeks to be admitted to bail/bond on reasonable terms. She has deposed to the following matters. She is a businesswoman residing in Kayole in a rental house. That she has parents who live in Meru and Kisumu, with whom she has close contact. She has also averred that she is not a flight risk. Further, she is in poor health which has been exacerbated by a stillbirth through the cesarean operation sometimes in 2021. She urges the court to release her on bail and undertakes to abide by the terms which the court may impose.

4. The 3rd accused similarly filed a notice of motion dated May 13, 2022 seeking his release on bail/bond. He has deposed as follows. He has a wife and two children who rely on him here in Nairobi. Further, he has a brother who stays in Nairobi while the rest of his family stay in Narok. He has averred that he is not a flight risk. He also undertakes not to interfere with the prosecution witness. Finally, he has averred that he will abide by the conditions set by the court if released on bond.

5. In response to the applications, the respondent through No. 73455 CPL Karisa Choyo, the investigating officer has deponed that the 1st and 2nd accused persons were on May 24, 2021 charged with the offence of housebreaking and handling stolen goods in the Chief Magistrate's court at Makadara in Criminal Case No. 1302 of 2021. Further, that the 1st accused was also charged with the offence of assaulting a police officer in Criminal Case No. 1316 of 2021 before the Chief Magistrates Court at Makadara. That in the two cases, the 1st and 2nd accused were released on bond but failed to attend court leading to warrants of arrest being issued. That they could not be traced and the state withdrew the charges thereto. He also averred that the 1st and 2nd accused persons are a flight risk.

6. He has further averred that the 3rd accused is a foreigner of Tanzanian origin who was arrested in Kenya without any valid documents. That he has no fixed abode and is a flight risk. He maintains that there is a likelihood that the accused persons will interfere with prosecution witnesses since they live in the same neighbourhood in Kayole and are well known to them. On the medical condition of the 1st accused, he avers that there is no evidence that he has been denied medical treatment at the remand facility. He urges the court to dismiss the applications for lacking in merit.

7. In rebuttal, the 2nd accused has denied ever being arrested, being arraigned in court, or taking a plea in Makadara Chief Magistrates Court Criminal case in Criminal Case No. 1302 of 2021 as alleged by the investigating officer. She attached proceedings of the said case in support of her claim.

The written submissions for the accused persons. 8. Messrs Chimei and company advocates for the 1st accused submitted that there are no genuine concerns presented before the court to deny the 1st accused bail/bond. They submitted that the court should exercise its judicial discretion and grant bail to the 1st accused.

9. Messrs Solomon Mugo and company advocates for the 2nd accused submitted that there are no compelling reasons to deny her bail/bond. It was submitted that the 2nd accused has demonstrated that she has a fixed abode, she is not capable of interfering with witnesses and she is not a flight risk.

10. For the 3rd accused, Messrs Khavagali and Kadima Law Advocates submitted that the 3rd accused is entitled to bail/bond as of right within the provisions of the law. Further, the respondent has not raised any compelling reasons for the denial of his bail.

The submissions of the respondent 11. Ms. Peris Maina, learned prosecution counsel for the respondent submitted that the accused persons are all flight risks. Firstly, that the 1st and 2nd accused persons have previously failed to attend court cases after being granted bail. Secondly, that the 3rd accused person is an undocumented foreigner having failed to provide proof of his nationality when the same was sought. She urged the court to dismissed his application.

Issues for determinationaWhether the accused are likely to interfere with the prosecution witnesses.bWhether the 1st,2nd, and 3rd accused persons are a flight risk.

Analysis and determination 13. The investigating officer, No. 73455 CPL Karisa Choyo, has not placed any evidence before the court of any prosecution witness who will allegedly be interfered with by the accused persons. In the absence of such evidence, his averment that there is a likelihood that the accused persons are likely to interfere with the prosecution witnesses is speculative and inadmissible.I therefore reject his averment for that very reason.

14. The 2nd issue is whether the accused persons are a flight risk. The respondent contended that the 1st and 2nd accused persons have previously failed to abide by the requirement for court attendance in an unrelated matter before the Chief Magistrate's court at Makadara. This averment relates to a case in the lower court at Makadara. That case is not before this court and the averments in relation to that case are irrelevant. I hereby reject those averments.

15. The respondent has further contended that the 3rd accused is of Tanzanian origin. I find as credible the averment that the 3rd accused is a foreigner and has no fixed abode. He has no attachments in this country.

16. After taking all the foregoing matters into account, I find on the evidence and the applicable law that there are no compelling reasons to deny bail/bond to the 1st and 2nd accused persons.

17. As regards the 3rd accused, I find that he a foreigner with no fixed abode in this country. He also does not have any attachments in this country. I further find that if he is released on bail/bond, it will be difficult to trace him.

18. In the premises, the applications of the 1st accused and 2nd accused persons succeed and they are each granted bond in the sum of Kshs. 250,000/- with a surety of a similar amount to be approved by the Deputy Registrar of this court.The applications of the 3rd accused fails and is hereby dismissed.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe 1st accused in person.Mr. Mbogo for the 2nd accusedMr. Khavaghali for the 3rd accusedMs. Maina for the Respondent