[2022] KEHC 11910 (KLR)

Republic v Athman & another (Criminal Case E011 of 2022) [2022] KEHC 11910 (KLR) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11910 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E011 of 2022

ACA Onginjo, J

June 10, 2022

Between

Republic

Applicant

and

Yunus Athman

1st Accused

Mohammed Karega Kassim

2nd Accused

Ruling

1. The subject of the ruling is an oral Application made by Accused persons to have their bail reinstated on May 27, 2022 and June 9, 2022. The background facts of the case are that the two Accused persons were arraigned in Court on May 24, 2022on the charge of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars are that on the September 10, 2018 at Mtongewe Location, Likoni Sub County they murdered Mbaraka Maitha Omar.

2. On the May 24, 2022, Accused persons were granted personal bond of KSH 500,000 with strict orders they attend mental assessment. The grant of bail was on the basis that the Accused persons had been free since the commission of the offence until they were summoned to attend court and they voluntarily brought themselves before Court. There were also no compelling reasons to deny them bail. The Accused persons were however arrested when they went to undertake mental assessment. On May 26, 2022in Criminal Miscellaneous Application E 241 OF 2022 orders were given by the Magistrate’s Court that Accused persons remain in custody for a period of 7 days at Port police station. This was to enable the police investigate the murder of the key witness Albert Wekesa in the present case that had occurred between 21st and May 22, 2022.

3. On May 27, 2022Accused persons took plea and 2nd Accused Advocate made an application for bail pending trial. However, the application was opposed vide the affidavit of IPOA00273 James Magondu Njuru who averred that the two accused persons were a danger to the public as they were suspected to have murdered the key witness in the present case. Particularly, the first Accused person was the last person to be seen with the deceased on the 21st of May 2022. The court made orders that Accused persons remain in custody as ordered in the miscellaneous criminal application and a pre bail report be prepared.

4. The matter came up on June 9, 2022and it was confirmed that the miscellaneous application had been withdrawn. The investigating officer however was not available on grounds of being unwell and the prosecuted availed a letter lacking a letter head indicating that he had been admitted at Diani Beach Hospital. It was also on these grounds that a pre bail report had not been prepared. The Accused persons were however of the opinion that there was mischief and malicious intent on the part of the police as they had been moved from the Port police station to Shimo La Tewa prison and their bail had been cancelled without legitimate reasons. Prosecuting Counsel Mr. Ngiri however opined that the Accused persons had been detained at Shimo La Tewa as they had taken plea and were waiting for their pre bail report to be prepared. He further opined that there was no malicious intent on the part of the prosecution or the police.

5. It is my observation that non production of the pre bail report was occasioned by the investigating officer’s moving Accused persons from the station to the prison without the knowledge of the Advocates or probation officers. The order issued for detention of the Accused persons at Shimo La Tewa was subject to them appearing in the Magistrates Court in Miscellaneous Application No. E241 of2022 and the said Court lifting the orders of detention. The Accused persons appear not to have been presented before the Magistrate Court on the due date and this Court therefore reads mischief and malice in the manner that the Accused persons were handled by the investigating officers which conduct could be prejudicial to the fair trial in this matter.

6. However, in order for this Court to arrive at an informed decision as to whether or not to release the Accused persons on bond and on what terms it is important not ignore the affidavit of the investigating officer and it is important for the Court to be provided with the social inquiry report which will entail an interview of all concerned parties including relatives of the deceased and Accused persons. For those reasons it is hereby ordered that a pre bail report be produced before this Court on June 16, 2022. Accused Remand in Custody at Shimo-la Tewa GK Prison.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 10TH DAY OF JUNE 2022. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:Ogwel - Court assistantMs. Kambaga for stateMr. Wangila Advocate for A1Mr. Otuoma Advocate for A2Accused 1 – present in personAccused 2 – present in personHon. Lady Justice A. Ong’injo J10/06/2022