[2015] KEHC 1639 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 115 OF 2015

REPUBLIC………………………………………………PROSECUTOR

VERSUS

ERASTUS NGURA ODHIAMBO Alias BABA BILLY……..ACCUSED

RULING

Erastus Ngura Odhiambo alias Baba Billy is accused of murdering Linda Wanjiku Irungu on the night of 11th/12th December 2014 at Waihura Court, Buruburu Phase V Extension within Nairobi County contrary to section 203 read with section 204 of the Penal Code. His application to be admitted to bail was declined by the court (Justice Luka Kimaru) on 3rd February 2015. The court found for the prosecution who had advanced reasons that the accused was likely to interfere or intimidate witnesses and that the accused is likely to abscond given the seriousness of the offence. The judge found these reasons compelling enough to deny the accused person bail.

The accused has come to court through his Notice of Motion dated 26th May 2015 and filed on 15th July 2015. The application seeks to have the court do the following:

To admit the accused to bail pending the hearing and determination of this case.

To order for a pre-bail assessment report to assist it to make a fair decision.

To grant any other orders and reasonable conditions it may deem fit and just.

In the course of canvassing this application, the applicant abandoned prayer number 2. He argued the application in favour of prayers 1 and 3. The grounds in support of the application are found on the face of it, the supporting affidavit and the oral submissions made in court by his counsel, Mr. Onyango. In summary the accused is telling the court that he is aware of the offence he is facing and he knows it is a serious one carrying a heavy penalty; that he is a Kenyan Citizen of fixed abode and he has no intention of absconding; that he has no interest in interfering with the cause of justice and will not interfere or intimidate any witnesses; that he has available sureties and is willing to abide by the terms and conditions that the court will set. He also told the court that he is ready to face the consequences of the penalty for murder if the court finds him guilty.

The application is opposed by the prosecution counsel. She relied on the replying affidavit sworn by Police Constable Charles Muthomi and also submitted orally in court. Counsel submitted that there is no difference between this application and the earlier one that has been declined by the court except the assurances by the accused that he will not interfere with the witnesses; that the judge in the earlier application was categorical that the accused should not be granted bail until key witnesses have been heard; that the prosecution still considers it prudent to have the two witnesses testify first before the accused is released on bond; that the case will be hear in two weeks-time (12th October 2015) and the accused will not suffer prejudice if he were to wait for the hearing date.

I have read the previous application. I find it similar to the one before me and I agree with the prosecution counsel that there is nothing new in the application before me. I have also read the ruling of Justice Kimaru. The challenge for me in handling this application is that I am not the one who handled the earlier application. I cannot even try to understand the reasoning of the judge who declined the application because every judge has his/her way of handling certain issues given the discretion each particular judge exercises. It is not my intention to comment on that ruling or to seem to sit on appeal on Justice Kimaru’s application. Suffice it to state that the accused has not brought before this court anything new for consideration.

After due consideration of this matter in view of the previous ruling, I hereby decline to grant the same. In an attempt to strike a balance in the matter, I direct that the prosecution to identify its two witnesses mentioned in the oral submissions by the prosecution counsel since Justice Kimaru’s ruling does not identify them. The prosecution shall produce those two witnesses, among others, before the court on the dates this case is scheduled for hearing (12th, 13th and 14th October 2015) to enable this court take their evidence. Immediately after taking down their evidence, this court shall review this matter and give orders/directions as shall be appropriate. This application is therefore declined pending the receiving of the evidence of the two prosecution witnesses as ordered. It is so ordered.

Dated, signed and delivered in open court this 1st day of October 2015.

S. N. MUTUKU

JUDGE