[2017] KEHC 1529 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL MURDER NO. 16 OF 2016

REPUBLIC……………….....……….……………............PROSECUTOR

VERSUS-

DOUGLAS WAWERU MWANGI…………..………..…….1ST ACCUSED

RULING

1. The 1st accused Douglas Waweru Mwangi filed an application by way of Notice of Motion seeking orders that:

(a) ….Spent

(b) That the Court be pleased to admit the applicant on bail and/or bond pending trial.

2. The application was based on six grounds namely:

(i) That the applicant faces a charge of murder contrary to S. 203 as read with S. 204 of the Penal Code.

(ii) That the applicant was arrested on 20th October, 2016 and has been in custody at Kerugoya G.K. Prison since then.

(iii) That the applicant is in law assumed innocent until proven guilty and his continued incarceration infringes on his fundamental trial under the Kenya Constitution 2010.

(iv) That under article 49 (1) (h) of the said constitution the offence is bailable unless there are compelling reasons not to be so released.

(v) That the co-accused in this matter has already been released on bond.

(vi) That the applicant is ready and willing to comply with any such terms and/or conditions the court may impose during the granting of the said bail and/or bond.

It is also supported by the affidavit of Charles Mbugua W. wherein he has reinstated the above grounds.

3. The Respondent opposed the application and filed an affidavit sworn by No. 234762 IP. Obadiah Musira who is the deputy OCS at Kagio Police Station. His contention is that the accused and his co-accused had threatened witnesses who have reported to the Police and recorded statement, annexture ‘OBI’. That if the 1st accused is released on bail, he is likely to interfere with witnesses in an attempt to defeat justice. That if the Court is to grant bail, it should be done after the key witnesses have testified.

4. I have considered the application. Article 49 (1) (h) of the Constitution gives a right to an arrested person to be released on bail pending trial unless there are compelling reasons not to. It provides:

“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.”

The affidavit sworn by Obadiah Musira was sworn in opposition to the application for bail by the 2nd accused. When the 2nd accused made the application the State did not oppose the application but urged the Court to put conditions that the accused should not interfere with witnesses. That if he does, by the report which is on the OB, the Police to arrest him and bring him to Court for cancellation of bond.

5. The fact of interfering with witnesses is a serious matter as it stands on the way of doing justice to victims of murder. It is indeed one of the matters the Courts have held to be a compelling reason to deny the accused person bail. The course of justice must not be derailed by threatening and intimidating potential witnesses.

6. The State did not oppose the application but when Mr. Omayo submitted he did inform the Court that the investigating officer who was in Court had informed him that the other accused who was released earlier is interfering with witnesses and threatening them.

7. The second accused was released on condition which the State stated was by consent, that if he interferes with witnesses, he should be arrested in accordance with the report which had been booked in the Occurrence Book. It means that even before the 1st accused is released on bond the 2nd accused who was released on condition that he does not interfere with witnesses, is busy threatening and intimidating them. It is clear that the threat to witnesses is real and not imagined. It is not just an allegation as a witness has already reported the threat and recorded a statement with Police annexture OB1 that he was threatened with dire consequences if they give information to the Police.

8. I am of the view that the Respondent has shown there is a compelling reason not to grant bail though stating that they do not oppose the application. The Court has a duty to do justice based on the facts presented before it. Based on the fact that the 2nd accused was released on a condition which has already been breached as stated by the investigating officer who was before Court denying the 1st accused bail is not a question of treating him differently or discriminating him. It is dictated by the state of affairs before the Court. There is confirmation of interference with witnesses after the 2nd accused was released on bail. In view of the condition by consent that he (2nd accused) be arrested if he interferes with witnesses, it seems to be just a matter of time before it is executed. The State confirmed that he has breached the terms.

9. Granting of bail pending trial is discretionally. The right to bail is not absolute as the Court can deny the accused the right if there are compelling reasons not to grant bail. The discretion of the Court must be exercised judicially. With the evidence that indeed witnesses have been interfered with after one of the accused was released, this Court cannot look the other side and grant bail. It would not be exercising the discretion judicially, fairly and in the interest of justice. In a persuasive decision in Republic -V- David Nyasora Nyamongo Criminal Case No. 90 of 2010 (Unreported) Makhandia J., as he then was, in dismissing an application for bail pending trial in a murder case stated:

“At the end of the day however, whether or not an accused should be admitted to bail, is largely a matter of discretion of the Court to be exercised in terms of the Constitution, the law applicable, taking into account the gravity of the offence, the risk of absconding, influencing witnesses, the overriding consideration of granting bail which is whether the accused will turn up for hearing of his case once granted bail. Again the Curt must bear in mind the other principal purpose for granting bail which is to reinforce the cardinal principle of criminal law that an accused is presumed innocent until the contrary is proved. Therefore unless there are compelling reasons for not doing so pending such trial, the accused ought to be released on bail.”

10. The issue in this application is one, whether there are compelling reasons why the applicant should be released on bail and two who bears the burden of proof. As already stated, the issue of interfering with witnesses has been proved by affidavit. As stated by Justice Makhandia above it is one of the considerations to be taken into account coupled with the fact that of the gravity of the offence charged among others.

11. On the issue of the burden of proof, the burden lies with the prosecution. He who alleges bears the burden of proof. The State bears the burden of proof. There does not seem to be any dispute that the accused has interfered with witnesses. The accused is contending that he has a right to bail and that he is presumed innocent. The fact of interfering with witnesses in this serious matter have been proved on oath. The Court would not be exercising its discretion judicially where there is proof of interference with witnesses. Justice is two ways and the Court must do justice to all irrespective of status.

12. I am of the view that there are compelling reasons not to grant the accused bail. I decline to grant the accused bail before all the witnesses who are under threat from the accused have testified. In the circumstances the application is without merits. The State should have the second accused arrested and his bond cancelled as it has been confirmed that he has interfered with witnesses which was a pre-condition to his release on bond. This application is dismissed.

Dated and delivered at Kerugoya this 2nd day of November, 2017.

L. W. GITARI

JUDGE

Read out in open Court, Mr. Mbugua for appellant, in the presence of Mr. Omayo for State, Appellant present; court assistant Naomi Murage this 2nd day of November, 2017.

L. W. GITARI

JUDGE

2. 11. 2017