[2022] KEHC 16015 (KLR)
The court found that although the accused is entitled to bail as a constitutional right, this right is not absolute and may be restricted where compelling reasons exist. In this case, the presence of the accused's minor child as a key prosecution witness, and the high probability of interference with the child's...
Source-derived case information.
- Citation
- [2022] KEHC 16015 (KLR)
- Parties
- Applicant: Republic; Defendant: Simon Miringu Gichuru
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E037 of 2022
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- bail denied; accused to remain in custody pending trial
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Trial, Murder Charge, Witness Interference, Child Welfare, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Simon Miringu Gichuru
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused should be granted bail pending trial for a murder charge.
- 2 Whether the presence of a minor child as a prosecution witness constitutes a compelling reason to deny bail.
- 3 How the best interests of the child impact the bail decision.
Ratio Decidendi
The court found that although the accused is entitled to bail as a constitutional right, this right is not absolute and may be restricted where compelling reasons exist. In this case, the presence of the accused's minor child as a key prosecution witness, and the high probability of interference with the child's testimony, constitute such compelling reasons. The court emphasized that the best interests of the child, as enshrined in Article 53(2) of the Constitution, take precedence over the accused's right to bail. The court also considered the children's welfare reports, which indicated that the children were well cared for by their maternal relatives and not in need of further...
Court Disposition
bail denied; accused to remain in custody pending trial
Orders
- The accused Simon Miringu Gichuru shall be remanded in custody during the pendency of his trial.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Gichuru (Criminal Case E037 of 2022) [2022] KEHC 16015 (KLR) (1 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16015 (KLR)
Republic of Kenya
In the High Court at Kiambu
Criminal Case E037 of 2022
MM Kasango, J
December 1, 2022
Between
Republic
Prosecution
and
Simon Miringu Gichuru
Accused
Ruling
1. Simon Mirungu Gichuru was on October 27, 2022 arraigned before this court charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He pleaded not guilty. He applied to be released on bond/bail pending the conclusion of his trial. The deceased he is alleged to have murdered was his wife. They were blessed with three children in that marriage. All the three children are under 18 years and are in school.
2. Even thought he accused is facing a murder charge which can attract death sentence, the same is bailable. He has a conational right to be released on bail. This indeed is an inalienable right which is only constricted by compelling reasons why bail should not be granted.
3. There is before me the pre-bail report of probation and the children’s officer’s report.
4. It is noteworthy that one of the accused children, who is 15 years old is a persecution’s witness in this murder trial. He is therefore due to testify against his father. Article 53(2) of the Constitution provides:-“a child’s best interest is of paramount importance in every matter concerning the child.”
5. In discussing what constitutes interest of a child, the canadian case Director and B2014 BCPCC III (CanLII) stated thus:-“(a)the child's health and emotional well-being;(b)the child's views, unless it would be inappropriate to consider them;(c)the nature and strength of the relationships between the child and significant persons in the child's life;(d)the history of the child's care;(e)the child's need for stability, given the child's age and stage of development;”
6. The interests, therefore of the accused’s children and more particularly the one who shall testify in the murder trial ranks higher than the interest of the accused. There is in this scenario a high probability that the accused who is that child’s father may interfere with that child to influence the evidence he will give. Interreference of the prosecution’s witnesses undermines the criminal justice system and dents the integrity of the criminal process. See Republic v Robert Kipkorir Tonui Bomet High Court criminal case No E001 of 2020.
7. The children’s officers report reveals that after the death of their mother and the incarceration of the accused the three children first were taken by the maternal grandmother but presently they are staying with their aunt. The report noted the children are happy staying with their aunt. The aunt has arranged for them to attend counselling following the trauma of losing their mother. That aunt has sought the children’s transfer from the schools they were attending. The aunt has found another schools which are within the vicinity of their present residence. The report concluded.“from the above observation, the children seem comfortable at their maternal relatives. T he children’s office Kabete therefore recommends that in the best interest of the child, the children continues staying with their maternal grandmother…”
8. It is clear from that report that children are not in need of care and protection. They are presently well cared for.
9. It follows that because there is one child who shall testify in the murder case and in order to ensure his evidence is not interfered with, this court declines to grant the accused bail as sought. The accused shall be remanded in custody during his pending trial.
RULING DATED and DELIVERED at KIAMBU this 1stday of DECEMBER, 2022. MARY KASANGOJUDGEIn the presence ofCoram:Court Assistant : Mourice/JuliaAccused Simon Miringu Gichuru :- presentFor accused : - Mr. KamuiruFor State :- Mr. GachariaRULING delivered virtually.MARY KASANGOJUDGE