[2017] KEHC 2004 (KLR)
The court found that while the prosecution's evidence regarding the 2nd Accused's safety was based solely on the investigating officer's affidavit and lacked corroboration from the community or family, the risk of interference with prosecution witnesses was credible. Most witnesses are close relatives of the 2nd...
Source-derived case information.
- Citation
- [2017] KEHC 2004 (KLR)
- Parties
- Applicant: Republic; Defendant: Ezekiel Saitabu Nakola; Defendant: Monicah Muthoni Mwangi
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 15 of 2017
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- bail application refused
- Judges
- DW Mbuteti
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Witness Interference, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ezekiel Saitabu Nakola
Defendant
Monicah Muthoni Mwangi
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the 2nd Accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there exist compelling reasons to deny bail, specifically risk of interference with witnesses and safety concerns.
Ratio Decidendi
The court found that while the prosecution's evidence regarding the 2nd Accused's safety was based solely on the investigating officer's affidavit and lacked corroboration from the community or family, the risk of interference with prosecution witnesses was credible. Most witnesses are close relatives of the 2nd Accused, including her husband and child, and they reside in the same compound. The court held that the possibility of interference with witnesses constitutes a compelling reason to deny bail at this stage. The application for bail was therefore refused, with liberty to renew the application at a later time if circumstances change.
Court Disposition
bail application refused
Orders
- The 2nd Accused's application for bail is refused for now.
- The application may be renewed at an appropriate time in the future.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MURANG’A
CRIMINAL CASE NO 15 OF 2017
REPUBLIC.......................................PROSECUTOR
VERSUS
1. EZEKIEL SAITABU NAKOLA
2. MONICAH MUTHONI MWANGI........ACCUSED
R U L I N G
1. The Accused persons herein, Ezekiel Saitabu Nakola and Monicah Muthoni Mwangi, are charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged in the information dated 13th April 2017 that on 20/03/2017 at Karega Sub-location in Kigumo Location of Kigumo Sub-County within Murang’a County, they jointly murdered one Grace Wangari Mwangi.On 28/04/2017 they both pleaded not guilty to the charge. Their trial is scheduled to commence on 19/12/2017.
2. The 2nd Accused Monicah Muthoni Mwangi has applied by notice of motion dated 09/05/2017 to be admitted to bail pending her trial. The Republic has opposed the application by a replying affidavit filed on 23/10/2017. It is sworn by one Corporal Richard Katui, the investigating officer of the case.
4. Bail is opposed upon the following grounds –
(a) The 2nd Accused’s own safety. It is stated in the replying affidavit that the Deceased’s family is very bitter with the 2nd Accused and if released on bail emotions may be stoked and her safety may not be guaranteed. It is further stated that the murder is still fresh in the minds of the local community and that they do not want her in their midst.
(b) Interference with witnesses; that if released on bail the 2nd Accused may interfere with witnesses.
5. I have considered the submissions of the learned counsels appearing. Bail pending trial is now a constitutional right for all offences that will be denied only for compelling reason. Such bail must also be on reasonable terms. See Article 49(1) (h) of the Constitution of Kenya, 2010.
6. Compelling reason is a matter of evidence to be adduced by the prosecution. The court may also infer such compelling reason from the circumstances of the case.
7. To begin with, there is only the investigating officer’s say-so about the view of the Deceased’s family and the local community regarding hostility towards the 2nd Accused that could lead to her harm. It would have been useful to have one or two affidavits from individuals in each group.
8. Secondly, her own safety if released on bail must be uppermost in the 2nd Accused’s mind, and it must be assumed in her favour that if released on bail she would take appropriate steps to ensure her safety, including, if necessary, residing elsewhere.
9. All that notwithstanding however, I have read the witness statements and other documents supplied to the Accused persons and to the court by the prosecution. I note that the 2nd Accused was the Deceased’s daughter-in-law as she is married to one of the Deceased’s sons. I also note that they lived in the same compound.
10. I further note that most civilian prosecution witnesses are the Deceased’s sons (including the 2nd Accused’s husband) and also a ten-year-old child of the 2nd Accused.
11. I consider that the possibility of interference with prosecution witnesses by the 2nd Accused is not far-fetched. This is a compelling reason to deny her bail for the time being.
12. I therefore refuse the 2nd Accused’s application for bail for now. The application may be re-newed at an appropriate time in the future. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 10TH DAY OF NOVEMBER 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANGA THIS 10TH DAY OF NOVEMBER 2017