[2022] KEHC 14951 (KLR)

Republic v Gathuna (Criminal Case E029 of 2022) [2022] KEHC 14951 (KLR) (Crim) (7 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14951 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E029 of 2022

DO Ogembo, J

November 7, 2022

Between

Republic

Prosecutor

and

Sarah Rukia Gathuna

Accused

Ruling

1. By an application dated 25. 5.2022, the applicant Sarah Rukia Gathuna, has applied to be released on bail pending determination of her case. The application is brought under Article 49(1)(h) of the constitution of Kenya and section 123 of the Criminal Procedure Code. The respondent has opposed this application on 3 grounds:-i.That the applicant is likely to interfere with prosecution witnesses.ii.That the applicant faces a serious charge that attracts, in case of conviction, serious punishment.iii.That the prosecution have a strong case against the applicant.

2. It was submitted that the alleged offence in the presence of neighbours and relatives all of whom are crucial witnesses. That if released, there is likelihood that the applicant will go back to the same residence, increasing her opportunity to interfere with the witnesses. Counsel relied on Republic Versus Fredrick Ole Leliman and 4 others (2016) eKLR, on the need to preserve the evidence.

3. Counsel also submitted on the seriousness of the charges the applicant faces and the serious nature of the sentence in case of a conviction. While noting that the applicant is presumed innocent, it was submitted that the severity of the sentence in case of a conviction remains a significant factor for consideration in an application for bail (Republic Versus Ahmed Mohamed Omar & 6 others (2010)eKLR, and Republic Versus Milton Kabulit & 6 others (2011) eKLR

4. Lastly, it was submitted that the strength of the prosecution, a fact that the applicant knows, would justify a denial of the right to bail. The Respondent relied on Republic Versus Margaret Nyaguthi Kimeu (2013) eKLR, a case in which bail was denied on the basis of the strength of the prosecution’s case.

5. In the filed submissions of the applicant, it was submitted that the strength of the prosecution’s case may only come out clearly when the evidence is tendered before the court, not before the commencement of the case.

6. Counsel for the applicant also submitted that the court may issue appropriate orders preventing the applicant from going to the premises so as to curb the likelihood of interference with the prosecution witnesses. (Republic Versus Robbert Zippor Nzilu (2018) eKLR).

7. I have considered the submissions of both sides with regard to this application. Article 49(1)(h) guarantees the right to bail to all accused (or arrested) persons irrespective of the charges that they face. The right is however not absolute and may be denied where it is shown to exist compelling reasons. Simply put, reasons that are good enough or strong enough as to justify the denial of the right. Under the Bail and Bond Policy Guidelines (Paragraph 4. 9) and indeed in court decisions, factors that may amount to compelling reasons include;- Nature of the offence and the seriousness of the punishment in case of conviction.

Strength of the prosecution’s case.

Character and antecedents of the accused.

Likelihood of interference with prosecution witnesses.

Need to protect victims of crime

Relationship between the accused and the witnesses.

Whether the accused is a flight risk.

Public order, peace or security.

Protection of the accused.

8. In this particular case, one ground of objection raised the serious nature of the charge the accused is facing and the likely punishment in case of conviction. Without a doubt the accused faces a serious charge of murder. However, it is worth noting that the prosecution’s case is yet to be heard. In the circumstances, this court is not convinced that this ground, on its own can be a justification for denial of the right bail.

9. Under Article 50(2)(a) of the constitution, the right of the accused person to be presumed innocent until the contrary is proved is guaranteed. No evidence has been taken in this case. This basically means that the court cannot gauge the strength of the prosecution’s case at this stage of the trial. And therein lies the distinction between our case and the case relied on by the Respondent, Republic Versus Margaret Nyaguthii Kimeu (2013)eKLR, a case in which all the prosecution witnesses had been taken, and thereby given the court the opportunity to consider the weight of the prosecution case. This court, before this case commences with the prosecution giving what evidence they have against the accused is not able to determine the strength of the prosecution’s case as urged. I am therefore not convinced that the prosecution quite proved this ground as a compelling reason.

10. The prosecution made a strong case that the applicant is likely to interfere with prosecution witnesses if released on bail. It is not controverted that some of the prospective witnesses are family members and neighbours of the accused. The defence have also not shown this court any evidence that the accused applicant has any other alternative place of abode. The effect of this is that if released on bail, the accused will proceed to stay with the same relatives and neighbours. This to me would be absurd just as much as it would be untenable. And I sincerely cannot fathom any order that this court may place as condition to prevent or deter the accused from engaging with the same witnesses. There is, on the other hand, need to preserve the integrity of the evidence of the prosecution. It is for this reason that I find that the prosecution has proved this ground as a compelling reason good enough to justify a denial of the right to bail to the applicant at this stage of the proceedings.

11. I accordingly therefore decline the applicant’s application for bail. I dismiss the same and order that the applicant shall be remanded in custody pending the determination of this case or taking of the evidence of the witnesses who are close relatives and neighbours. It is so ordered.Court:

12. Ruling read out in open court in the presence of the accused, Mr. Waweru for accused and Ms. Kimani for the state

D. O. OGEMBOJUDGE7th NOVEMBER, 2022. Court:Case to proceed as fixed. Hearing 25th/26th January 2023.