[2017] KEHC 9501 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL CASE NO. 29 OF 2015

REPUBLIC.....................................................................PROSECUTOR

VERSUS

E M I alias C…..……................................……….…...1ST ACCUSED

RAPHAEL KIMANI GACHII alias KIM BUTCHER.....2ND ACCUSED

MUSTAFA KIMANI ANYONI alias MUSTO………....3RD ACCUSED

STEPHEN ASTIVA LIPOPO alias CHOKORE…......4TH ACCUSED

J W K alias S……..…….....................……...........….5TH ACCUSED

M N W…………………….….......................................6TH ACCUSED

SIMON WAMBUGU GICHAMBA…...….....................7TH ACCUSED

RULING

BACKGROUND

1. The accused persons were charged with the offence of murder contrary to Section 203as read with Section 204 of the Penal Code the particulars of which were that on the night of the 6th/7th day of February, 2015 along Kenyatta Avenue within Nairobi County jointly murdered HON. GEORGE MUKUKU MUCHAI on Count one (1), PC SAMUEL KIMATHI KAILIKA on count two (2), PC SAMUEL LEKAKENY AYATANTA on count three (3) and STEPHEN ITUU WAMBUGU on Count four (4).

2. They all pleaded not guilty to the said charges and were remanded in custody pending the hearing and determination of the case. In the meantime the 2nd accused RAPHAEL KIMANI GACHII alias KIM BUTCHER, 4th accused STEPHEN ASIVA LIPOPO alias CHOKORE and the 5th accused J W K alias S filed applications for bond which applications were heard by Justice Lagat Korir and by a ruling dated and delivered on 29th February, 2016 held that there were multiple compelling reasons to deny the three applicants their constitutional right to bail.

APPLICATIONS

3. The 1st accused E M I alias CHAIRMAN, 3rd accused MUSTAFA KIMANI ANYONI alias MUSTO, the 6th accused M N W and 7th accused SIMON WAMBUGU GICHAMBA had not filed their respective applications by the date of the said ruling and therefore did not have their day in court. This ruling is therefore related to their respective applications which are set herein below:-

4. On 25/1/2016 the 6th accused M N W filed an application dated 31/12/2015 in which she sought to be released on bond pending trial and in support thereof deponed that before her arrest she had a family comprising of three children aged between twelve (12) and seven (7) years who she provided for and sought to be released so as to continue providing parental care, control and affection to them. It was stated further that she is a young lady who led a meaningful life and engaged herself in income generating activities which she would like to continue with while attending to the trial. It was stated that the intended prosecution witnesses were unknown to her and that the trial was likely to take long in view of the intended witnesses.

5. On 28th January, 2016 the 3rd accused MUSTAFA KIMANI ANYONI alias MUSTO filed an application for bond under Articles 21(1), 49(h) 50(2) of the Constitution and Section 123 (1) 3 and 124 of Criminal Procedure Code and in support thereof deponed that the prosecution intends to call a total of forty four (44) witnesses and therefore the matter is likely to take long. He stated further that he was not a flight risk since all his relatives live in Kenya and does not intend to interfere with witnesses nor had power to do so.

6. On 20th June, 2017 the 7th accused SIMON WAMBUGU GICHAMBA filed his application for bond and in support thereof he deponed that he has a fixed abode with family ties in Kenya and is therefore not a flight risk and a danger to the public being merely a suspect in the case before court.

7. In response to the said application the State through CPL MOSES OTIU on 8th May, 2017 filed an affidavit in respect of the 1st accused but stated that all the accused persons were aware of the key potential prosecution witnesses some who had already testified against them in the ongoing trial at the Chief Magistrate’s Court at Milimani where the accused persons have been positively identified by the said witnesses.

8. It was deponed further that one of the key prosecution witnesses who was in contact with the accused persons revealed that while in their company he was warned from ever mentioning what he had seen and heard and if he did so they would kill him. This said witness, it was deponed, is yet to testify. He referred the court to an affidavit sworn on 19th October, 2015 and filed on 21/10/2015.

9. It was stated further that the 1st accused never cooperated with the investigator and that the G3 rifle recovered in the house where he was staying with the 6th accused matched the spent cartridges recovered at the scene and bullet head recovered from the body of STEPHEN ITTU WAMBUGU and therefore if the accused persons are released on bond and they threaten or intimidate the potential key prosecution witnesses before the prosecution secure all the evidence the damage will be so severe to salvage.

PREBAIL REPORT

10. In compliance with the provisions of Victim Protection Act and the Bond/Bail Policy Guidelines the court ordered for pre-bail report on each of the applicants which have been filed and in which the following recommendations were made.

a) 1ST ACCUSED: E M I

The accused was arrested in 2009 for offence of robbery with violence and sentenced to serve four years imprisonment up to March, 2014 when he was released in CRIMINAL CASE NO. 54602/09 CM KIBERA COURT. He was once married to the 6th accused but they separated due to physical and emotional abuse.

On the victim impact statement it was indicated that the family of the victims is against the accused being released on bond since they believe they might hurt her.

b) 3RD ACCUSED MUSTAFA KIMANI ANYONI

His parents separated while he was two months old and is the first born in a family of two. He is married to Miriam Hassan and the family has nothing to deposit as security. The families of the victims have reservation on their release on bond fearing that they may interfere with the family members and witnesses.

c) 6TH ACCUSED J W K

Is the first born in a family of five. She was married to one J M but separated due to domestic differences. Their one child stays with the maternal grandmother while two stay with their paternal grandfather in Kitale. The accused was sentenced to 6 months in 2006 for being in possession of bhangi. She does not have community ties while the families of the victim are opposed to her being released on bond.

d) 7TH ACCUSED SIMON WAMBUGU GACHUMBA

Single aged 23 years and lives in the family home in Kangemi who is ready to stand surety for the same while the families of the victim are against his being released on bond.

SUBMISSIONS

11. On behalf of the 1st accused it was submitted that the court had so far heard the evidence of only two (2) witnesses out of the intended forty four (44) and going by that pace the accused is likely to be in custody for over five (5) years. It was submitted that the 1st accused and the 6th accused are husband and wife and they are therefore not flight risk.

12. On behalf of the 3rd accused it was submitted that the investigations in this matter were long completed and there was therefore no possibility of interference with witnesses. For the 6th accused it was submitted that the same is not a flight risk and was not likely to interfere with witnesses. The court was urged to take into consideration the fact that the applicant is a mother of three children of tender age and the period she has been in custody. On behalf of the 7th accused, it was submitted that the same is not a flight risk and has a fixed abode in Kangemi.

13. On behalf of the prosecution it was submitted that all the accused persons have been charged in CRIMINAL CASE NO. 479/2015 with three counts of robbery with violence while the 1st and 6th accused face an offence of being in possession of firearms and their trials thereon is ongoing. It was submitted that the 1st accused while in remand custody was found in possession of prohibited substance. In addition to having previous record it is submitted that there are vital prosecution witnesses who have testified before the lower court whose testimony are now known to the accused persons and are likely o be intimidated if the accused persons are released on bond.

ANALYSIS AND DETERMINATION

14. Bond is now a constitutional right of every accused person regardless of the nature of offence and can only be denied if there are compelling reasons to be advanced by the prosecution as stipulated in Article 49(1) (h) as follows:-

(1) An arrested person has the right

(h) to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons.

15. The Constitution is silent on what constitute compelling reasons and for purposes of this ruling Justice Korir in her ruling in respect of the 2nd, 4th and 5th accused persons summarized the same in paragraphs 10-14 to which I need not add anything as follows:-

“10. The question as to what can be considered compelling reasons under the Constitution has often featured in bail applications. It is instructive that the Constitution left the determination of what amounts to compelling reasons to the discretion of the court aforestated. Courts have however time and again fallen back on the criteria used traditionally to deny or grant bail. In the Mgunya case cited above, Ibrahim J (as he then was) cited the Nigeria Supreme Court decision in ALHAJI MUJAHID “DUKULO –ASARI VS. FEDERAL REPUBLIC OF NIGERIA S.C. 20A/2006 which lists the following criteria.

i. The nature of the charges

ii. The strength of the evidence which supports the charges

iii. The gravity of the punishment in the event of conviction

iv. The previous criminal record of the accused if any

v. The probability that the accused may not surrender himself for trial

vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him

vii. The likelihood of further charges being brought against the accused

viii. The probability of guilt

ix. Detention for the protection of the accused

x. The necessary to procure medical or social reportpending final disposal of the case.

11. The Supreme Court of India in SANJAY CHANDRA V. CBI [2011] NSC 1149 summarized their criteria in the following words:-

“The overriding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; or tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in my view of so many valuable facts, cannot be exhaustively set out.”

12. In REPUBLIC V. AHMAD ABOLAFATHI MOHAMMAD AND SAYED MANSOUR MOUSARI cited above Achode J, while deciding on the issue of public interest deferred to the South African Criminal Procedure Act which sets out clearly circumstances under which it would not be in the interest of justice to grant an accused bail. These are that the accused person, if released on bail would:-

a. Endanger the safety of the public, or any person, or will commit a certain specified offence;

b. Attempt to evade trial;

c. Attempt to influence or intimidate witnesses or to conceal or destroy evidence;

d. Undermine or jeopardize the objectives or the proper functioning of the criminal justice system, or,

e. Where in exceptional circumstances, there is the likelihood that the release of the accused would disturb the public order or undermine public peace or security.

13. The Bail and Bond Policy Guidelines published in March 2015 by the National Council on the Administration of Justice, Kenya lists the following factors as some of the considerations in bail/bond evaluation:-

a. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.

b. The strength of the prosecution case.

c. Character and antecedents of the accused person

d. The failure of the accused person to observe bail or bond terms

e. Likelihood of interfering with witnesses.

f. The need to protect the victim or victims of the crime

g. The relationship between the accused person and potential witnesses

h. Child offenders

i. The accused person is a flight risk

j. Whether accused person is gainfully employed

k. Public order, peace or security

l. Protection of the accused person

14. From the above, it is apparent that various jurisdictions apply more or less the same criteria or considerations. What is key is the judicious exercise of judicial discretion and that each case is decided on its own peculiar facts and circumstances. See WATORO VS REPUBLIC (1991) KLR 220. It is important that Judicial discretion in bail/bond applications is exercised judiciously particularly because it is an issue that touches on an accused person’s fundamental right to liberty. The court as a state organ, is enjoined to interpret the Constitution in a manner that promotes fundamental rights. As aptly stated by Ibrahim J (as he then was) in the Mgunya case cited above, “liberty is precious and no one’s liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted.”

16. In the said ruling the good Judge made the following determination of facts as regards the circumstances under which the offence before me is alleged to had occurred:-

“a.)The accused knows three (3) key prosecution witnesses who are said to had experienced robbery in the hands of the accused persons and the said witnesses identified the accused persons. To this the judge held:-

“I find these facts to be demonstrative of a scenario where the witnesses would be intimidated and experience fear were the accused persons to be released on bail.”

b) The accused persons are likely to abscond if released on bond:

29. “In this particular case, the circumstances which have been laid before the court are that the seven (7) accused persons in the case face four (4)counts of murder and other cases of robbery with violence before the lower court. The prosecution has demonstrated that to the court that it has evidence in form of witness statement and documented records that the pistol issued to them by police to PC Samuel Kimathia Kailikia deceased was recovered from the house of 2nd accused. It has also displayed its evidence of identification of the accused persons in an identification parade. I find that the nature of this evidence is not tenuous and supports the state contention that it is likely to tempt the accused to evade trial.” (Emphasis added)

17. Those findings of facts by the judge have not been reviewed and or set aside and therefore the issue for determination is what is their effect in respect of the application before this court and whether a court of concurrent jurisdiction may depart from the finding of facts by a judge based on the same circumstances?

18. As a country we have just come out of an unfortunate situation where one Judge of the Supreme Court in her dissenting judgment reviewed and critiqued the judgment of the majority in the supreme case of RAILA ODINGA & ANOTHER v IEBC and 2 Others Supreme Court petition No. 1 of 2017and I therefore take the view that I am bound by Justice Korir’s findings on facts in this matter unless other additional materials are placed before me and therefore a departure therefrom will lead to judicial anarchy.

19. I therefore find and hold that the issued flagged out herein in respect to the accused persons whose applications were heard by Justice Korir applies to those whose applications were placed before me and find that the following compelling reasons apply to the applicants:-

a) The facts that their trial before the Magistrate’s court has advanced and several witnesses have testified in the presence of the accused persons who now know the nature of their testimony and therefore there is real likelihood of the applicants interfering with them should they be released on bond.

b) The nature of the offence and the seriousness of the punishment likely to be meted out should the accused persons be found guilty raises the possibility of and incentives for the accused persons to abscond.

c) The fact that the other accused persons charged with the same offence together with the applicants before me have been denied bail taking into account similar circumstances of the commission of the offence.

d) The fact that the trial herein has now commenced before me and is likely to proceed to conclusion in the shortest time possible.

20. Taking the above stated matters into account I have come to the conclusion and hold that there are enough compelling reasons to enable the court at this stage deny the applicants their constitutional right to bail which I hereby do. The applicants shall continue to be in custody pending the hearing and determination of this case and it is so ordered.

DATED, SIGNED and DELIVERED at Nairobi this 12th day of October, 2017

……………....

J. WAKIAGA

JUDGE

In the presence of:

Mr. Meroka for the State

Mr. Wachira for the 1st accused person

Mr. Olando for the 2nd accused person

Mr. Ongaro for the 3rd accused person

Mr. Mutitu for the 4th accused person

Mrs. Nyamongo for the 5th accused person

Miss Njuguna for the 6th accused person

Mrs. Nyamongo for the 7th accused person

Miss Musyoki watching brief for the family

All Accused persons present

Tabitha court clerk