[2022] KEHC 13693 (KLR)

Repubic v Wainaina alias Kanyundo & another (Criminal Case E094 of 2021) [2022] KEHC 13693 (KLR) (Crim) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13693 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E094 of 2021

DO Ogembo, J

October 12, 2022

Between

Republic

Prosecutor

and

Jackline Wambui Wainaina alias Kanyundo

1st Accused

Purity Njeri Kamande

2nd Accused

Ruling

1. The accused Jackline Wambui Wainainaalias Kanyundo, has moved this court vide their joint application dated March 15, 2022. The application, brought section 124 of the Criminal Procedure Code and articles 20(3)(4), 21(1), 222(3)(4), 49(1)(h) and 50(2) of the constitution seeks that this court do order the release of the applicant on bond pending the determination of this court. The application is supported by an affidavit of Jackline Wambui Wainaina sworn on March 1, 2022.

2. In the short submissions made in court, Mr Omenke for the applicants submitted that bail is a right under article 49 of theConstitution, and that there is no compelling reason for denying the applicant bail.

3. The prosecution through learned counsel, Ms Kimani, opposed this application. That the right to bail is not absolute and may be denied if compelling reasons are shown to exist. It was submitted that the application is likely to interfere with prosecution witnesses since they are her employees and so she exercises economic authority over them. An example was given of how she attempted to interfere with the witnesses by attempting to influence the contents of their statements.

4. It was further submitted that she ought to be remanded in custody for her own security and that if released, she would be attached by members of the public. Lastly, it was submitted that she faces a serious charge which on conviction could attract death sentence, and that this could be an incentive to abscond.

5. I have considered this application and the submissions made in court by the 2 sides. This is an application for bail. Article 49(1)(h) of the Constitution directs;“An arrested person has the 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.”

6. Two important scenarios came out of the above provision. First, that the right to bail is available to all arrested or accused persons irrespective of the nature of the charges that they face. And secondly that the right to bail is not absolute and may be denied should it be shown that there exist compelling reasons that would justify the denial of the right. If it is the prosecution side which opposes the release of the applicant on bail, it must follow that the onus of proving the existence of compelling reasons lies with the prosecution.

7. In this particular instance, the prosecution has opposed bail on 3 grounds.;- That the applicants if released are likely to interfere with the prosecution witnesses.

That for their own security and safety, the applicants ought to be remanded in custody.

That they are likely to abscond in view of the serious nature of the charges that they face.

8. Indeed, at paragraph 4. 9 of the Bail and Bond Police Guidelines, 2015, the above 3 grounds may be considered in determining whether indeed the exists justification for denial of bail. The issue is whether the prosecution duly proved the existence of those 3 grounds in opposing bail herein.

9. Regarding the first ground on likelihood of interference with witnesses, the objection of the prosecution was that the alleged witnesses are well known to accused 1 as they were her employees. The prosecution however, have not shown how the accused has interfered or attempted to interfere with such witnesses. This court holds that for this ground to be sustained as a compelling reasons, the prosecution must shown tangible evidence or reason of such interference. Merely alleging likelihood of interference can only, to say the least, amount to speculation. This is the same holding that the Hon Justice Mutuku arrived at in Republicvs William Kipkorir Chirchir andanother (2018)eKLR, which persuasive decision I fully associate myself with. I am therefore not convinced that the prosecution sufficiently proved this ground as a compelling reason in this case.

10. On the 2nd ground raised that the accuseds be remanded in custody for her own safety and security, it is clear from the charge, that this incident is alleged to have taken place on November 12, 2021. Apart from submitting that the ground is still volatile and hostile against the applicant, the prosecution has again not shown any evidence pointing at such hostility on the ground.

11. Lastly, on the ground that the applicant faces a serious offence which could be an incentive to abscond the trial, I must assay that the answer to this lies in article 50(2)(a) of theConstitution, that;“Every accused person has the right to a fair trial, which includes the right- To be presumed innocent until the contrary is proved.”

12. It is therefore the view of this court that the serious nature of the offence charged cannot on its own be a compelling reason since the accused enjoys the right to presumption of innocence. The same can also not be assumed to be an automatic reason for absconding.

13. The sum total is that this court is not convinced that the prosecution has proved the existence of any compelling reason herein good enough to justify denial of the right to bail to the applicant. I accordingly dismiss the objection of the prosecution and order that accused 1 may be released on bail on the following terMsi.A bond of Kshs 1 million with 1 surety of a similar amount.ii.An alternative of Kshs 200,000/= in cash bail.iii.Upon release on bail, the accused is ordered never to contact and or interfere with any prosecution witnesses, directly or indirectly till this matter is determined.iv.The accused, shall upon being released, be expected to attend court at all times as could be ordered by the court till this case is determined. It is so ordered.

D. O. OGEMBOJUDGE12TH OCTOBER, 2022. Court:Ruling read out in open court in the presence of applicant, Mr Omenke for the accused, and Ms Kimani for state.D. O. OGEMBOJUDGE12TH OCTOBER, 2022. Accused: present.Ms Kimani for the state – presentMr Omenke for the accused presentMs Kimani:We are ready with 2 witnesses.Court:Due to long cause list, this matter is adjourned. Hearing 1. 2.2023. Mention 14. 11. 2022.