[2013] KEHC 409 (KLR)
The court found that the 1st accused had previously threatened key prosecution witnesses, specifically his daughter Jackline Moraa and her brother Duke Arasa Nyamongo. This was supported by an affidavit and a letter from Jackline Moraa. The court held that the risk of interference with witnesses constituted a...
Source-derived case information.
- Citation
- [2013] KEHC 409 (KLR)
- Parties
- Applicant: Republic; Defendant: David Ngasora Nyamongo; Defendant: Thomas Aranga Nyandiba
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 90 & 978 of 2010
- Procedural Posture
- Criminal Murder / Ruling on Bond Application
- Outcome
- application dismissed
- Judges
- AT Sitati
- Legal Topics
- Bail and Bond, Witness Interference, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Ngasora Nyamongo
Defendant
Thomas Aranga Nyandiba
Defendant
Procedural Posture
Criminal Murder / Ruling on Bond Application
Legal Issues
- 1 Whether the 1st accused should be granted bond pending trial.
- 2 Whether the 2nd accused, currently serving a prison sentence, should be granted bond.
Ratio Decidendi
The court found that the 1st accused had previously threatened key prosecution witnesses, specifically his daughter Jackline Moraa and her brother Duke Arasa Nyamongo. This was supported by an affidavit and a letter from Jackline Moraa. The court held that the risk of interference with witnesses constituted a compelling reason to deny bond. Regarding the 2nd accused, the court determined that since he was already serving a 10-year prison sentence in another criminal case, granting bond would be futile. Consequently, the court dismissed the bond application for both accused persons.
Court Disposition
application dismissed
Orders
- The application for bond by both accused persons is dismissed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MURDER NO.90 OF 2010
AS CONSOLIDATED WITH
CRIMINAL CASE NO.97 OF 2010
REPUBLIC ………….................................…… PROSECUTOR
VERSUS
DAVID NGASORA NYAMONGO ….……….. 1ST ACCUSED
THOMAS ARANGA NYANDIBA ……………. 2ND ACCUSED
RULING
The two accused persons, David Ngasora Nyamongo and Thomas Aranga Nyandiba are jointly charged with the murder of Hellen Nyamongo contrary to section 203as read with section 204 of the Penal Code. They both pleaded not guilty.
This ruling relates to an application for bond by both accused persons. The 1st accused, David Ngasora Nyamongo has had two similar applications heard and dismissed on grounds that he was a threat to prosecution witnesses. He has reviewed his application for bond on grounds that his children who have alleged that he threatened them have not sworn any affidavits to confirm that they have received any threats from him. As concerns his brother, Charles Ombati Nyamboga, the 1st accused avers that the said Charles Ombati Nyamboga stays in the United Kingdom and knows nothing about the situation on the ground in the accused’s home. The 1st accused also avers that the Investigating Officer in this case has not sworn any affidavit to confirm allegations of threats to witnesses.
As for the 2nd accused’s counsel Mr. Masese submitted that he is currently serving a longer sentence in Criminal case No.566 of 2010.
In arguing the application on behalf of the 1st accused, Mr. Ondari submitted that there are no compelling reasons why the said accused person should not be released on bond. Counsel urged the court to consider the Bail Assessment Report and grant bail to the accused.
Mr. Shabola, Prosecution counsel opposed the application by reiterating the reasons advanced against the application on 22nd February 2012 with respect to the 1st accused. Counsel submitted that the 2nd accused ought not to be considered for bond because he is serving 10 years imprisonment in Criminal case No.566 of 2010.
I have now carefully considered the application, the submissions and the law. The issue that arises is whether the 1st accused ought to be granted bond.
After considering all the above, I do not think that there is any good ground for this court to grant the order sought. It is now well settled that apart from considering the omnibus criteria of whether an accused released on bond will avail himself to answer the charge against him it is equally important for the court to consider whether, if an accused is released on bond, he is likely to interfere with witnesses.
There is evidence on record that the 1st accused, who has already issued threats to his daughter one Jackline Moraa and her brother Duke Arasa Nyamongo. Jackline Moraa swore an affidavit filed on 20th February 2012 confirming the threats and also wrote a letter dated 30th January 2012 to the State.
For the above reasons I find that the 1st accused is not a fit person to be released on bond. As for the 2nd accused, he is serving a prison term and as such it would be futile for this court to make any orders granting him bond.
The application is accordingly dismissed.
It is ordered.
Dated and delivered at Kisii this 19th day of December, 2013
R.N. SITATI
JUDGE
In the presence of:
Mr. Shabola for State
Mr. Nyagwencha for B.O. Masese for 1st Accused
and for Sonye Ondari for 2nd Accused
Mr. Bibu - Court Clerk