[2022] KEHC 12610 (KLR)

Republic v Chairman & 6 others (Criminal Case 29 of 2015) [2022] KEHC 12610 (KLR) (Crim) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12610 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 29 of 2015

JM Bwonwong'a, J

July 7, 2022

Between

Republic

Prosecutor

and

Erick Munyera Isabwa Alias Chairman

1st Accused

Raphael Kimani Gachi Alias Butcher

2nd Accused

Mustatfa Kimani Anyonyi Alias Musti

3rd Accused

Stephen Asitiva Lipapo Alias Chokore

4th Accused

Jane Wanjiru Kamau Alias Shiro

5th Accused

Margaret Njeri Wanchiuri

6th Accused

Simon Wambugu Gichamba

7th Accused

Ruling

1. The accused persons except the 5th and 7th accused have applied for review of the order refusing to release them on bail/bond on the basis that there has been a change of circumstances to warrant the review.

2. The 5th and 7th accused persons did not apply for review of the order denying them bail/bond.

3. I will set out the case for each accused.

The case for the 1st accused- Erick Munyera Isabwa Alias Chairman 4. The 1st accused through his counsel (Mr. S.G. Wachira) has applied for bail/bond under certificate of urgency pending his trial on a charge of murder.

5. The 1st applicant has deposed to an eleven (11) paragraphs supporting affidavit, whose major averments are as follows. Since there are multiple accused persons, it is not humanly possible to conclude the trial within a short time. The 1st accused is not a flight risk. There is no likelihood that the 1st accused will interfere with witnesses and no evidence that the 1st accused has attempted to interfere with witnesses. The 1st accused has admitted that there is pending in the lower court a case, which should not be used to deny him bail/bond. This court should make a determination based on the material placed before it and not to rely on evidence against the co-accused. The 1st accused is presumed to be innocent until the contrary is proved in terms of article 50 (2) (a) of the 2010 Constitution of Kenya.

6. Furthermore, the 1st accused has deposed that the court may impose conditions to ensure his attendance including reporting orders. The court should not rely on the pleadings that were filed by the prosecution, since the 1st accused is not in a position to challenge them.

The case for the 2nd accused- Raphael Kimani Gachii alias Kim Burcher. 7The 2nd accused has deposed to a 17 paragraphs supporting affidavit; whose major averments are as follows. He is not a flight risk. He did not know the victims or their family members and only came to learn of them through the media. Even after learning of them the 2nd accused did not escape as he concentrated on his butchery business.

8. The accused is the sole bread winner of his family and his continued incarceration has led to their suffering. He has co-operated with the law enforcement agencies and is ready to co-operate with the police.

9. He has not interfered with witnesses and will not attempt to do so.

10. The conditions within the prison are not conducive for trial preparations.

11. The 2nd accused filed a further affidavit in which he deposed to the following major matters. He has averred that the investigating officer failed to adduce any evidence to support his averments in his replying affidavit. He has further averred that there is no evidence that the 2nd accused will abscond if he is released on bail/bond and that he will interfere with the witnesses. He has further averred that he fell ill and contracted covid-19 while in prison.

12. He has also averred that the opposition by the prosecution to his application is based on speculation and conjectures.

The case for the 3rd accused-Mustatfa Kimani Anyoni alias Musti 13. The 3rd accused has deposed to a 29 supporting paragraphs; whose major averments are as follows. The 3rd accused is charged with robbery with violence in the Chief Magistrate’s Court at Milimani court but now at City court in Criminal Case No. 479 of 2015. Although this trial is scheduled to resume on 28th, 29th, 30th and 31st March 2022, it is known when it will be concluded given the vagaries of practice. He was the sole bread winner of his elderly grandmother and his 6 months old daughter; prior to his arrest seven years ago. He has learned that his wife left their daughter and moved on leaving her to the care of his mother-in- law. Although he is charged with robbery with violence the 3rd accused is still presumed innocent until the contrary is proved in terms of article 50 (2) (a) of the 2010 Constitution of Kenya. And following advice from his advocate, the 3rd accused believes he has a right to be released on bail/bond in terms of article 49 (1) (h) the 2010 Constitution of Kenya; unless there are compelling reasons to deny him bail/bond.

14. Furthermore, the 3rd accused has deposed as follows. Her daughter is entitled to enjoy to parental care and attention by virtue of article 53 (1) (e) of 2010 Constitution of Kenya.

15. The trial is likely to take long since only 11 out of a possible 44 witnesses have testified owing to trial logistics. The relatives of the 3rd accused are willing and ready to provide security and he is also ready to abide with the conditions of bail that the court may impose.

16. There is no evidence to connect him with the charge of robbery that was filed against him in the Chief Magistrate’s Court at Milimani court but now at City court in Criminal Case No. 479 of 2015. He has also deposed that he is not a flight risk since all his friends and relatives reside in Kenya and he also intends to build parental relationship with his daughter.

The case for the 4th accused- Stephen Asitiva Lipapo alias Chokore 17. The 4th accused has deposed to a 12 paragraphs supporting affidavit, whose major averments are as follows.

18. The 4th applicant has deposed that he was arrested on 13th February 2015 and charged in court. He pleaded not guilty and was denied bail on 12th October 2017. He has also deposed that he is the sole bread winner of his wife and child. Only 16 witnesses have testified and more than 17 witnesses have not testified. His long incarceration is a violation of his right to bail. Vulnerable witnesses have testified and the 4th accused has undertaken not to interfere with the witnesses. The prosecution has not demonstrated that he is a flight risk.

19. Furthermore, the 4th accused has deposed that he has strong community ties and that he will reside with his family if released on bail/bond.

20. He has there urged the court to review its earlier decision that refused to grant him bail/bond.

The case for the 5th accused- Jane Wanjiru Kamau alias Shiro 21. The 5th accused did not file an application for review of his denial of bail/bond.

The case for the 6th accused- Margaret Njeri Wanchiuri** 22. The 6th accused has deposed to a 14 paragraphs supporting affidavit, whose major averments are as follows.

23. This court delivered rulings on diverse dates denying all the accused bail/bond citing, among other reasons, the following. The 6th accused is likely to intimidate witnesses and is likely to abscond. The court relied on the potential evidence in the form of witness statements in respect of her identification and/the co-accused besides the recovery of a pistol. The nature of the offence was not tenuous and the punishment that might be meted in the event that she is convicted; with the court (Wakiaga, J) relying on the ruling of Hon. Lady Justice Korir.

24. Furthermore, she also deposed that the court (Wakiaga, J) observed that the trial in the lower court had advanced and several witnesses had testified and therefore she knew the nature of the testimony of those witnesses. Additionally, the trial of that lower court case was likely to be concluded in the shortest time. Based on the foregoing reasons the trial court denied them bail only none witnesses have testified with numerous witnesses remaining and the trial is unlikely to be concluded soon as anticipated.

25. She has deposed that she is not flight risk and will not interfere with the witnesses. This court should ignore pendency of the robbery case in the lower court and should not be influenced by it in determining the present application for bail. This court should consider the case against each accused separately on its own merit and not collectively.

26. She has finally urged this court to review its earlier ruling and grant her bail/bond.

The case for the 7th accused-Simon Wambugu Gichamba N/A. 27. The 7th accused did not file an application for review of his denial of bail/bond.

The submissions of counsel for the accused 28. Counsel for all the accused persons did not file any submissions in support of their applications.

The case for the respondent/Republic 29. The prosecution has filed a 13 paragraphs replying affidavit through No. 80664 PC Andrew Njagi of DCIO Central Nairobi, who is the investigating officer in this case, in opposition to the present application.

30. He has deposed to the following major averments. He has deposed that:“ThatI wish to reiterate the averments in the three (3) replying affidavits sworn by No. 7719 Cpl Moses Otiu dated 13th March 2015 15th July 2015 and the other dated 19th October 2015 and emphasize that the circumstances have not changed to warrant a review of the accused persons bail/bond (Annexed are copies of the three affidavits marked as “AN1 and “AN2”).”

31. The investigating officer has deposed in reply to the supporting affidavits of the 1st to 5th and 7th accused persons that there is no proof of their fixed places of abode.

32. Additionally, he has deposed that the remand and correctional facilities in Kenya have are well equipped with personnel who are in a position to diagonise and offer treatment and medicines to the remandees; contrary to the allegations of the accused to the contrary. The remand and correctional facilities in Kenya are accessible to all, including advocates who upon request, do meet their clients for consultations and advice. The allegations of the accused to the contrary are not correct.

33. The investigating officer has also deposed that this matter is scheduled for hearing on 28th, 29th, 30th and March 31, 2022 when the remaining civilian, technical and expert witnesses are expected to testify. He therefore urges this court to defer the intended review until these witnesses testify before a decision is made.

34. He has also deposed that the prosecution undertakes to ensure the availability of witnesses during trial in order to expedite the trial.

The submissions of the respondent/Republic. 35. Counsel for the respondent (Ms. Peris Maina) filed her written submissions in opposition to the application.

36. Counsel submitted that this is the fourth application for bail/bond that the accused have filed.

37The 1st application was rejected by Korir, J in her ruling dated February 29, 2016.

38. The 2nd application for bail/bond was for review which was rejected by Wakiaga, J in his ruling dated October 12, 2017.

39. The 3rd application was also for a further review which was rejected by Wakiaga, J in his ruling dated 30th May 2019.

40. The opposition by the respondent is based on four grounds namely: -1)fear of the family of the victims for their safety and/security.2)apprehension that the accused are likely to interfere with witnesses.3)character and antecedents of the accused.4)the seriousness of the penalty if the accused are convicted, and5)the strength of the prosecution case.

1. Fear of the family of the victims. 41. In this regard, counsel has submitted that the family of the victims strongly object to the release of the accused on bail/bond; since they feel that they would not be safe if they are released on bail/bond, according to the pre-bail report. The widow of Hon. George Muchai expressed concern that if her late husband with all the security detail would be shot dead, what about herself and her children.?

42. Similarly, the widow of the late Stephen Wambugu also expressed similar fears for her life and stated that releasing the accused on bail/bond would be tantamount to re-opening the wounds of her husband’s death. The death was so traumatic to the entire family to the extent that attending court sessions was difficult.

2. ) Apprehension that the accused will interfere with the witnesses 43. The remaining civilian witnesses oppose the release of the accused on bail/bond because they fear the accused will interfere with them. The accused persons had demonstrated their intent and ability to interfere with the investigations as evidenced by the written statement of Morris Njuguna, which is annexed and marked as “MO-8” to the affidavit dated 19/10/2015. In support of this proposition counsel has cited the decision of this court (Lesiit, J as then was) in Republic v Leliman & 4 others (2019) e-KLR, in which that court held that interference with witnesses covers a wide range, which can take place immediately on commission of the offence, during investigations or during the trial. That court added that interference may be committed by any person including the accused, the witnesses or other persons. That court added that interference may be committed by any person including the accused, the witnesses or other persons.

3. ) The character and antecedents of the accused persons. 44. In the state report which is annexure marked “MO 8” of the affidavit dated 19/10/2015 through a forensic analysis of the finger and palm prints shows that Raphael Kimani, Stephen Asitiva and Jane Kamau have previous convictions. And if they are released on bail they are likely to engage in the commission of crimes.

45. Counsel has further submitted that Raphael Kimani was convicted of robbery with violence contrary section 296 (2) of the Penal Code (Cap 63) Laws of Kenya in Kibera CM’s Court Criminal Case No. 54602/2009 and was sentenced to 4 years imprisonment.

46. In respect of Stephen Astiva, counsel submitted that he was charged with the following offences. Firstly, he was convicted and sentenced to 4 years imprisonment in respect of robbery with violence contrary to section 296 (2) of the Penal Code under CR. 163/235/2009. Secondly, he was convicted and sentenced to 12 months imprisonment in respect of preparations to commit a felony contrary to section 308 (1) of the Penal Code under CR. 79595/05. Thirdly, he was charged with robbery with violence contrary to section 296 (2) of the Penal Code under Criminal Case 79595/05. Fourth, he was also charged with theft from person contrary to section 268 (1) as read with section 275 of the Penal Code.

47. As regards Jane Kamau, counsel submitted that she was convicted and sentenced to a fine of Shillings one million (shs 1,000,000/-) in default to serve one year imprisonment in respect of trafficking contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 under Cr. 24086/09.

48. Furthermore, all the accused have been charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code in Milimani CM Court Criminal Case No. 384 of 2015, which is on-going.

49. Based on the decision of this court (Achode, J) in Republic v Ahmad Abolafathi Mohammad & Another, Nairobi High Court Criminal Revision No. 373 of 2012, counsel submitted that the court ought to take into account the public interest in determining whether to grant or refuse bail/bond. In the aforesaid case that court set out the following circumstances that will militate against the grant of bail/bond. First, where the release of the accused on bail/bond will endanger the safety of the public or any person, or commit a certain specified offence. Second, where the accused will attempt to evade trial. Third, where the release of the accused will undermine or jeopardize the objectives or the proper functioning of the criminal justice system. Fourth, where there is probability of guilt.

50. Counsel submitted that the accused have a high propensity to commit crimes and if released on bail/bond, they are likely to commit other offences and will endanger public safety.

4. ) The nature of the charge and the punishment to be meted in the event the accused are found guilty. 51. The accused are charged with four counts of murder namely the murder of Hon. George Mukuru Muchai, No. 92634 PC Samuel Kimanthi Kailikia, No. PC 81813 PC Samuel Lekakeny Matanta and Stephen Ituu Wambugu.

52. If the accused are convicted of the four charges they may be sentenced to death. The severity of the sentence remains an incentive for the accused to flee from the jurisdiction of this court. Furthermore, the accused are faced with an on-going case of robbery with violence which similarly provides an incentive to the accused to flee from the jurisdiction of the court.

53. Counsel has cited the case of Republic v Ahmed Mohammed Omar & 6 others (2010) e-KLR, where the court observed that although the accused is presumed innocent, if he is convicted of murder, there is a possibility that the trial court could sentence him to death. The court therein pointed out that the severity of the sentence remains a significant factor for consideration in an application for bail pending trial.

5. ) The strength of the prosecution case 54. Counsel submitted that the strength of the prosecution evidence tendered in court and the severity of the sentence to be meted out if the accused is convicted are factors to be considered in an application for bail/bond, in respect of which counsel cited Republic v Margaret Nyaguthi Kimeu (2013) e-KLR, in support of her proposition. She submitted that the prosecution has tendered evidence that is strong, compelling and overwhelming against the accused, which includes recent possession of stolen property, CCTV footage and expert witnesses.

55. Counsel therefore urged the court to dismiss the applications.

Issues for determination 56. I have considered the affidavits of the parties, their submissions and the law applicable. I find the following to be the issues for determination.

1. ) Whether the accused have demonstrated that there has been a change in the circumstances in the case to warrant a review of the order refusing bail/bond. Issue 1 57. The applicants filed this application to review the order refusing them bail/bond. The major averments that are common to all the applicants are as follows. They are not a flight risk. There is evidence that they are likely to interfere with witnesses. Since there are multiple accused persons, it is not humanly possible to conclude the trial within a short time. They are presumed to be innocent until the contrary is proved in terms of article 50 (2) (a) of the 2010 Constitution of Kenya.

58. Furthermore, it is common to all applicants that this court should make a determination, based on the material placed before it. They have also averred that this court should assess the evidence against each accused separately such that the evidence of a co-accused should not be used against a fellow co-accused.

59. Most of the applicants have averred that this court should ignore the pendency of the robbery case in the lower court and should not be influenced by it, in determining the present review application for bail. The case in the lower court is Milimani Chief Magistrate’s Court Criminal Case No. 479 of 2015.

60. The 2nd, 3rd and 4th accused averred that they provide for their families and their continued incarceration has led to the suffering of their families.

61. The prosecution has opposed the application on the basis of the fear of the victims, the apprehension that the accused are likely to interfere with witnesses, the bad antecedents of the accused and the penalty that might be imposed in the event that the accused are convicted.

62. I find that there are averments of the affidavit of the investigating police officer (No. 80664 PC Andrew Njagi) and the submission of counsel for the prosecution that have raised concern that merit attention. The first matter for concern is the submission of counsel for the prosecution that the accused have been charged in the lower court with the offence of robbery contrary to section 296 (2) of the Penal Code in Milimani CM’s, Court Criminal Case No. 384 of 2015, which is on-going. Counsel submitted that in view of this case, the accused are likely to commit further offences if released on bail/bond. The accused have urged this court to ignore this submission. I find that the submission of the prosecution which is unprecedented amounts to an invitation to this court to speculate as to whether the accused might commit other offences if released on bail/bond. A court of law is not allowed to engage in speculation. It has to base its decision on the evidence produced before it. I therefore agree with the defence that this submission is without merit and I therefore reject it.

63. Furthermore, the second matter of concern is the unprecedented submission by prosecution that in view of the certificate of previous criminal convictions in respect of of Raphael Kimani (the 2nd accused), Stephen Astiva (the 4th accused) and Jane Kamau (the 5th accused), there exist a high likelihood of these accused engaging in the commission of further crimes if they are released on bail/bond. The defence have opposed this submission. I find that this submission is in admissible and is highly prejudicial to the accused and I therefore reject it.

64. I find that the only instance where the prosecution is allowed to lead what is otherwise prejudicial evidence is under the similar fact evidence rule. Under this rule according to the dictum of the Privy Council in the Australian case of Makin v Attorney General for New South Wales (1894) AC 37, the prosecution is allowed to lead evidence in rebuttal of an anticipated defence of accident by the accused. In that case the court ruled as admissible the prosecution evidence to rebut in advance the anticipated defence of accident by the accused. The said evidence was not admitted to show that the accused had propensity to commit the offence charged which was murder; but to rebut the anticipated defence of accidental killing of the babies or natural causes.

65. On the authority of the foregoing case, I find that the prosecution submission is inadmissible and is highly prejudicial to the accused for it was intended to demonstrate that they are criminals who are likely to commit further offences if they are released on bail/bond. I therefore reject this submission for being inadmissible and highly prejudicial to the application of the accused.

66. However, I uphold the submission of the prosecution that the accused are likely to interfere with the witnesses based on the statement of one Morris Njuguna, since they demonstrated their intention and ability to interfere with witnesses. The statement of the said Morris Njuguna is annexed to the affidavit of the investigating police officer (No. 80664 PC Andrew Njagi). If the accused desired to challenge it by way of cross-examining Morris Njuguna, they had an opportunity to do so but they did not do so. The accused for reasons known to themselves did not challenge his potential evidence.

67. It is settled law that an order refusing bail/bond may be reviewed by the court if the applicant demonstrates that there is a change in the circumstances of the case. The burden of proof lies upon the applicant to demonstrate that there has been a change in the circumstances of the case. The standard of proof is on a balance of probabilities.

68. It is for the foregoing reasons that the doctrine of res judicata, autrefois acquit and autrefois convict are non-applicable in matters of bail/bond pending trial.

69. I find that in the instant application the order/ruling sought to be reviewed is that of Wakiaga, J dated 30th May 2019, which is in itself was an order/ruling made in a review application by the accused persons. And the said order/ruling is reported as Nairobi High Court Criminal Case No. 29 of 2015, Republic v Erick Mungera Isabwa alias Chairman & 6 others in the (2019) e-KLR. The law report further shows that the order/ruling dated 30th May 2019 was as a result of a review application that was made by 1st, 3rd, 6th and 7th accused following a dismissal of their application by Justice Lagat Korir on 29th February 2016.

70. The present review application by the accused is the 4th application in this court.

71. I further find that the accused have not demonstrated that there is any change in the circumstances of this case.

72. In the circumstances, the application fails and hereby dismissed.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 7TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMs. Peris Maina for the Republic/respondent.Mr. Mabati holding brief for Wachira for the 1st accused/applicantMr. Mabati holding brief for Mr. Olando for the 2nd accused/applicantMr. Ongaro for the 3rd accused was absent/applicant.Mr. Mabati holding brief for Mr. Chege for the 4th accused/applicant.Mr. Mabati holding brief for Ms. Nyamongo for the 5th and 7th accused/applicant.Mr. Mabati holding brief for Mr. Mathenge for the 6th accused/applicant.The 1st,2nd, 3rd, 4th, 5th, 6th and 7th accused persons.