[2023] KEHC 23156 (KLR)

Republic v Gatimu (Criminal Case E002 of 2023) [2023] KEHC 23156 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23156 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case E002 of 2023

PM Mulwa, J

October 5, 2023

Between

Republic

Prosecutor

and

Elizabeth Wairimu Gatimu

Accused

Ruling

1. Before the court for determination is the Notice of Motion application dated July 17, 2023. The application seeks the court to review the orders of April 27, 2023, declining the applicant bail/bond pending trial.

2. The application is supported by the annexed affidavit of Elizabeth Wairimu Gatimu sworn on July 17, 2023, she avers that three (3) prosecution witnesses have testified so far. That she is the sole breadwinner. And further that the crucial witnesses have since finished high school. That there is no possibility of interfering with witnesses as she no longer has access to the school following her dismissal vide a letter dated May 17, 2023.

3. Opposing the application, the prosecution counsel Mr Gacharia relied on the Replying Affidavit sworn by PC Benard Muange on September 19, 2023. He averred that only 3 out of 13 prosecution witnesses have testified, the application is premature and cannot hold. He stated the conditions set out in Paragraph 35 of the Ruling dated April 27, 2023 have not been met and thus the only recourse available to the applicant is an appeal. He stated the change of circumstances in the dismissal of the accused from the school is in favour of her denial of bond since there is a need to record further statements from former colleagues and students who appeared before the Teachers Service Commission (TSC). That the Applicant having worked for close to 30 years as a teacher still holds great influence on the likely new witnesses. The increased number of likely witnesses will make the number of crucial witnesses go up from the initial 13.

4. At the hearing of the application, Mr Waweru stated the accused no longer has access to the school and thus is not in a position to interfere with the witnesses, the accused has never been informed that investigations are still ongoing. He submitted that there was no interference with the witnesses who testified. And further that there is a change in circumstances and pleaded with the court to release the accused on reasonable bail terms. He added that the accused ought to be presumed innocent until proven otherwise. And in any case the 30 years the accused has been a teacher have not been spent at Gatanga C C M school.

5. Mr. Gacharia opposed the application and submitted there is no change in circumstances as far as the 13 witnesses are to testify and some students are yet to complete school. The issue of interference with witnesses is real and the same may result in a no-show by the witnesses. He stated that the influence a teacher has on students is very huge. The influence of the accused on the students is real, and there is a need for further investigations as long as the prosecution has not closed its case. That the court’s earlier ruling on bond was not appealed.

6. The accused herein Elizabeth Wairimu Gatimu was charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars are that on the night of 8-9th March 2019, at Gatanga C.C.M Secondary School in Gatanga Sub-County within Muranga County murdered Ebbi Noelle Samuels.

7. The accused was arraigned in court for plea taking on February 9, 2023 and after the charge and the particulars were read out, she pleaded not guilty. The accused counsel applied to have the accused released on reasonable bail terms. This court in its ruling of April 27, 2023, declined to release the accused on bail/ bond.

8. The Applicant now moves this court to review the said orders and admit her on reasonable bail or bond pending trial.

9. In order for the court to review an application for bond/bail pending trial it must be satisfied that the accused has certified a change of circumstances since the last order declining grant of the orders. In Misc Criminal Application. No. 55 of 2014Republic v Diana Suleiman Said & another [2014] eKLR, the court held as follows:“The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances change in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.”

10. While the burden of proof with regards to changed circumstances may appear to fall on the accused as the applicant for bond/bail review, it is really a matter that falls for consideration under the general principle that an accused person is entitled to bail unless compelling reasons exist for refusal. Where bail has previously been refused on the basis of pre-existing situation, either party, if it so desires can demonstrate the non-existence or otherwise the continued existence of compelling reasons in the circumstances of the case.

11. Three (3) prosecution witnesses have testified in this case and according to the state quite a number of others are remaining, and the number may increase as there is a possibility statements will be recorded from more witnesses now that the accused is no longer an employee of the TSC.

12. The fact that the prosecution feels that more witnesses will come out to testify after the accused was dismissed from service, is enough testament that circumstances have changed. That witnesses feel safer that the accused no longer wields the power she used to when she was a teacher.

13. This court, in its ruling of April 27, 2023 observed (para 31) that most witnesses had recorded statements save for three (3) who the investigating officer had difficulty in tracing. There was no mention by the prosecution then that witnesses had not recorded statements because they feared or were intimidated by the accused person.

14. It was contended by counsel for the accused and proved that the accused was dismissed from service by the TSC with effect from May 17, 2023. That, therefore means she cannot continue practicing as a teacher, that she ceased being a headteacher of Gatanga C C M School and cannot access the school. Therefore, there will be no likelihood of interference with witnesses.

15. In reaching a determination, the court is of course, mindful that an accused who is facing a serious charge such as murder has a lot of incentive to interfere with the administration of justice. And therefore, the court does not disregard the prosecution’s concerns. But in this case, the court is minded to review the bail refusal order in respect of the accused person on account of changed circumstances – that at least three (3) witnesses have testified, the passage of time since the offence herein was allegedly committed, the dismissal of the accused from what the prosecution contended was of influence and the time it may take to conclude the hearing of the case.

16. However, in the event of any breach of bond/bail conditions, the terms thereof shall extinguish and the prosecution shall be at liberty to apply for such orders against the accused person.

17. Accordingly, for the reasons set out above, this court makes the following orders:a.The application for bail pending trial dated July 17, 2023 by the accused person, is hereby allowed.b.The accused person is granted a bond of Kshs 1,000,000/= with two (2) sureties each of a similar amount.c.The accused shall not communicate with the prosecution witnesses whether by physical contact, mobile or other telephony or by any other means, either directly or through proxy.d.The prosecution shall be at liberty to apply for cancellation of the bail granted to the accused herein in the event of breach of any of the terms hereinabove set out.

It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER 2023. …………………………………………P.M. MULWAJUDGE