[2013] KEHC 2533 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 45 OF 2012

PATIUS GICHOBI NJAGI………………1ST ACCUSED/2ND APPLICANT

CAESAR WACHIRA MUTHONI............2ND ACCUSED/3RD APPLICANT

MARY NJERI WACHIRA ….................3RD ACCUSED/1ST APPLICANT

VERSUS

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

RULING

Patius Gichobi Njagi, Ceasar Wachira Muthoniand Mary Njeri Wachira(1st, 2nd & 3rd accused respectively) are charged with the murder of Virginia Wamaitha Thuku. The particulars of the charge are that on 17th day of August 2011 at Mwiki District within Nairobi County jointly murdered Virginia Wamaitha Thuku.

The accused were first arraigned in court on 19th July 2012 along with one Joseph Chomba Mwangi (then 2nd accused) to answer to the charge. Subsequently, upon the demise of the said 2nd accused, the three accused now before court were required to take plea on substituted information on 18th December 2012. They pleaded not guilty and were remanded in custody pending trial.

All three accused then applied for bail. The 1st applicant/3rd accused (Mary Njeri) filed her application dated 21st August 2012 on 5th September, 2012. The 2nd applicant/1st accused (Patius Njagi) filed his application dated 8th November 2012 filed on 15th November 2012. The 3rd applicant/2nd accused (Caesar Wachira), filed his application dated 17th December 2012 on 17th December 2012. Their applications were consolidated, heard together, hence this single Ruling.

The 1st applicant states in her Supporting Affidavit sworn on 21st August 2012 that the offence with which she is charged is bailable; that she has an unqualified right to be presumed innocent; that her continued detention undermines her unqualified constitutional right to be presumed innocent and amounts to punishment before trial; that she has delivered in prison and that her child needs to be brought up outside the prison environment; and, that she has no intention of relocating from the country.

The 2nd applicant states in his supporting affidavit sworn on 8th November 2012 that he shall not in anyway interfere with witnesses, and will remain within the jurisdiction of the court and live peacefully with members of society if released on bail.

The 3rd applicant on his part states in his supporting affidavit sworn on 17th December 2012 that he has a constitutional right to bail; that his continued detention pending trial undermines and contravenes his constitutional right to liberty and presumption of innocence and that he undertakes to attend his trial.

The three applications are opposed by the State through three Replying Affidavits of one Clement Mwangi of CID Headquarters, Nairobi, who is the investigating officer in the case. They were sworn on 7th November 2012, and on 7th February 2013 in respect of the 1st, 2nd and 3rd applicants respectively. All three affidavits make averments to the effect that the 3 applicants met and planned to eliminate the deceased; executed the plan by cutting her into pieces, packing her body parts in paper bags and throwing her remains into Nairobi River; that the applicants had threatened witnesses and in particular the key witness, one Joel Wanjau Guchu whom the 2nd applicant sent an SMS through the mobile phone of the 1st applicant threatening him and who subsequently had to be rescued by police on the 9th July 2012.

Specific to the 1st applicant, the investigating officer avers that the prison facility has facilities for the care of her baby. Further, with respect to the 3rd applicant, he avers that the applicant made a confession under inquiry raising his likelihood of guilt.

At the hearing of the applications on 22nd April 2013 I heard extensive oral submissions from both the defence and the prosecution. I have carefully considered the submissions. I also called for a pre-bail social inquiry report in respect of each applicant. The submissions not only expound on the matters deponed upon in the rival affidavits but extensively deal with the issue of threat to and interference with prosecution witnesses. This issue has emerged in the Replying Affidavits and oral submissions before court to be the main ground why the State opposes the bail applications. I consider this issue one on which the application must turn.

Article 49 (i) (h) of the Constitution on which the application is grounded provides that “an arrested person has a 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……”A reading of this Article shows that bail must in the first instance be granted as of right. However it is also my understanding that the right is not an absolute right and can be curtailed by the court where there are compelling reasons.

Further, where the State opposes an accused person’s application for bail, it is its duty to demonstrate to the court any compelling reasons envisaged under Article 49 (1) (h). Such reasons would arise in my view from any fact or circumstance that would convince the court that the release of the accused would not serve the interests of justice in the particular case or the trial at hand. The court would therefore consider the circumstances of each case using commonly known criteria including but not limited to whether or not the accused will attend trial. See Watoro V. Republic (1991) KLR 220.

The State’s duty in bringing forth the compelling reasons was aptly discussed by Ibrahim J. (as he then was) in the case of R. Vs Danson Mgunya and Kassim Sheebwana Mohamed, Mombasa Criminal Case No. 26 of 2008wherein he stated;

“I do hold that if the prosecutor objects to the release of the accused from detention during the pendency of a trial, then at the first instance, the burden should be on the prosecution and not the accused to prove or at least demonstrate the existence of the“compelling reasons.”

Further, in my view, where the State opposes bail on account of any of the often-cited and commonly known fears which it routinely expresses including, but not limited to the likelihood of the accused absconding and failing to attend trial; likelihood of interference with witnesses; the possibility of hostile and even violent reception of the accused by the community upon release, the State must do more. It must step out of the realm of imagination and speculation and provide the court with persuasive argument backed by facts and experiences, and circumstances unique to each individual case that would make the court appreciate the need to deny an applicant bail. As stated in the celebrated case Jaffer V. Republic 1973 E.A. 39,the court cannot be called upon to speculate.

In the present application, I have been called upon to deny the applicants bail for reason that they are likely to interfere with witnesses. It is the State’s submission that the deceased in this case was the wife of the 1st accused with whom they had been married for nine years and had one daughter and that a number of witnesses are relatives of the 1st accused while some are neighbours in the same locality.

Other than that it is the prosecution’s submission that the applicants have already interfered with a key witness one Joel Wanjau Guchu. That on the 26th June 2012 while the 1st and 3rd accused were detained at Muthaiga Police Station, the 2nd applicant used the 1st applicant’s phone number to send a threatening SMS to the witness. To back up this submission, prosecuting counsel presented to the court data from the safaricom mobile service provider showing the communication.

Prosecuting counsel further submitted that on 9th June 2012 the witness was threatened at Kutus town on the instigation of the relatives of the 2nd accused who raised an alarm leading to the witness being confronted by members of the public. The said witness was rescued by the police and subsequently put under witness protection. In addition, the court heard that on 2nd June 2012, the wife of the key witness was visited by unknown people at her home who alleged that they were CID officers. The incident was reported to the CID which confirmed that the visitors were not CID officers. It was the prosecution’s belief that the visit was part of the scheme of intimidating the witnesses.

In submissions in response, defence counsel disputed that there was any scheme hatched by the applicants to intimidate witnesses.

I have carefully weighed the evidence presented by the State on this contested issue of interference with witnesses. I am persuaded that the State has demonstrated through a factual and experiential account that the accused are not just likely to interfere with witnesses but have actually engaged in acts of intimidation and threats to specific witnesses and their families. Indeed the pre-bail probation reports which I have considered independently also give credence to the prosecution’s position. For the 3rd applicant particularly the social inquiry revealed that the local community suspect his involvement with a terror gang suspected of committing various crimes in the neighbourhood.

Finally it is on record that two witnesses in this case have been placed under the witness protection programme having been assessed and considered high risk by the Witness Protection Agency. That indeed is further incontrovertible testimony to the real threat to witnesses in this case. I hold, as I have held before, that a threat to prosecution witnesses is a threat to the administration of justice and goes to the root of the trial.

For these reasons, I am disinclined to allow the three applications for bail. The accused shall remain in custody pending the conclusion of their on-going trial.

Ruling delivered, dated and signed at Nairobi this 22ndday of July, 2013

R. LAGAT - KORIR

JUDGE

In the presence of:

………………………………..: Court clerk

Mary Njeri Wachira : 1st Applicant

Patius Gichobi Njagi :2nd Applicant

Caesar Wachira Muthoni:3rd Applicant

……………………………....: For the 1st accused/applicant

……………………………….: For the 2nd accused/applicant

……………………………….: For the 3rd accused/applicant

……………………………….: For the state/respondent