[2022] KEHC 16270 (KLR)

Prosecutor v Muhimpundu (Criminal Case E077 of 2022) [2022] KEHC 16270 (KLR) (Crim) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16270 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E077 of 2022

DO Ogembo, J

December 15, 2022

Between

Prosecutor

Republic

and

Anniela Muhimpundu

Accused

Ruling

1. The applicant, Anniela Muhimpundu, has pleaded with this court vide a notice of motion application dated November 7, 2022 that she be admitted to bail on reasonable terms pending the hearing and determination of her case. The application is supported by an affidavit sworn by her on November 7, 2022. In the affidavit, the applicant has sworn that she is wife to one Simon Joseph Ochieng, and a mother to a 6 year old daughter. That she is a permanent resident with a business in Umoja. She undertakes to abide by any conditions that the court may set.

2. Counsel for the applicant, Mr Nyamanga, further made submissions that the applicant, a Burundian, has been a resident since 2017 and is not a flight risk. counsel stressed that the applicant is married to a Kenyan absence of a work permit ought not be taken as a compelling reason. It was further denied that she is likely to interfere with witnesses. The court was urged to make a balance between the right of the accused and safeguarding the course of Justice and grant the accused bond as prayed.

3. The learned counsel for the state, Ms Kimani, opposed this application on grounds that there exists compelling reasons. It was first submitted that the accused, being Burundian, is a flight risk. that she does not have a work permit nor a permanent residence. That the marriage with SJO is not formalized.

4. It was further submitted that if released, the applicant is likely to interfere with witnesses who are well known to her as her clients and security officers. It was prayed she be denied bail.

5. I have considered the submissions of both learned counsel regarding this application. Article 49(1)(h) of theconstitution avails the right to bail to all accused person irrespective of the nature of the charge that they face. The right however, is not absolute and may be denied should the prosecution show and prove the existence of any compelling reason, i.e a reason good enough as to justify a denial of the right to bail. The Bail and Bond Policy Guidelines of the Judiciary, at paragraph 4. 9 gives directions as to what could constitute compelling reasons.

6. In this particular case, the objection of the prosecution was that the applicant is a flight risk. the submissions was based on the fact that the applicant is Burundian with no work nor any community ties in Kenya. However, during the submissions, it came out clearly that the applicant has been resident in Kenya since 2017 and has been renewing her work permit periodically. The applicant has also shown that she runs a business, [particulars withheld] – Umoja 2. An affidavit pf marriage between the applicant and one Simon Joseph Ochieng, ID No xxxx has also been shown. On a balance of probabilities, this court is persuaded that the applicant has community ties in Kenya.

7. The second ground of opposition raised by the prosecution is that she is likely to interfere with the witnesses if released on bond. The prosecution however did not show to court any such interference or any attempt towards interference with any witnesses. In the absence of any such proof, the submissions of the respondent are basically expressions of fear and suspicions which cannot amount to a compelling reason.

8. I am in the circumstances not convinced that the prosecution has proved any compelling reason good enough as to justify a denial of the right to bail to the applicant. I accordingly therefore allow this application and order that the accused may be released on bail on the following conditions:-i.A bond of Kshs 1 million with 1 surety of a similar amount.ii.In the alternative, a cash bail of Kshs 200,000/=. In case of deposit of this cash, one Simon Joseph Ochieng ID No xxxxxxx, to deposit copy of his ID card and also sign a surety form to secure the attendance of the applicant to court.iii.The applicant to deposit her Burundian passport in court.iv.Upon release, the accused is ordered never to contact and or interfere with the prosecution witnesses either directly or by proxy till this case is determined.v.The accused, upon release, is ordered to attend court at all time as may be ordered by the court till this case is determined.It is so ordered.

RULING READ OUT IN COURT (ON LINE)THIS 15TH DAY OF DECEMBER, 2022. HON DO OGEMBOJUDGECourt:Ruling read out in court (on line) in the presence of the accused (Langata), Mr Nyamanga for accused and Mr Mutuma for the state.HON DO OGEMBOJUDGEDecember 15, 2022.