[2015] KEHC 3023 (KLR)
The court found that the accused had interfered with prosecution witnesses by having them swear affidavits in support of his bond application, which is improper at this stage. Additionally, the accused fled after the commission of the offence and was only arrested months later, indicating a risk of absconding. These...
Source-derived case information.
- Citation
- [2015] KEHC 3023 (KLR)
- Parties
- Applicant: Republic; Respondent: James Muthee M’Mwikaria
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 2 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- bond denied; accused to remain in remand pending trial
- Judges
- RPV Wendoh
- Legal Topics
- Bail and Bond, Compelling Reasons, Flight Risk, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
James Muthee M’Mwikaria
Respondent
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused should be granted bond pending trial.
- 2 Whether there are compelling reasons to deny the accused bond under the Constitution.
Ratio Decidendi
The court found that the accused had interfered with prosecution witnesses by having them swear affidavits in support of his bond application, which is improper at this stage. Additionally, the accused fled after the commission of the offence and was only arrested months later, indicating a risk of absconding. These factors constituted compelling reasons to deny bond, as the court could not guarantee the accused would attend trial if released. The constitutional right to bond is not absolute and may be limited where compelling reasons exist. The application for bond was therefore declined, and the accused was ordered to remain in remand pending trial.
Court Disposition
bond denied; accused to remain in remand pending trial
Orders
- The application for bond is declined.
- The accused shall remain in remand pending hearing of his case.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CR CASE NO. 2 OF 2015
REPUBLIC………………….……………...………PROSECUTOR
-VRS-
JAMES MUTHEE M’MWIKARIA………..…………….ACCUSED
RULING
The accused faces a charge of murder contrary to Section 203 as read with Section 204 of the PC. By the motion dated 24/3/2015, he seeks to b e released on bond pending the hearing of this case. He filed a supporting affidavit and a further affidavit dated 8/5/2015 in which he deponed that he is presumed innocent until proved guilty; that he is a family man and is not a flight risk but will attend court as will be required of him. Further, affidavits were filed by Dorcas Muthoni, Margaret Nkirote and Emmah Kinya.
The application was opposed and the Investigating Officer, PC James Aswani swore an affidavit to the effect that accused is a flight risk having fled from the scene of crime from 25/5/2014 till he was arrested on 5/1/2015 in Tigania West; that the offence is still fresh and he is likely to be subject of revenge attacks from the community.
Bond is a Constitutional right but the said right is not absolute; the court is left with discretion to consider whether or not there are compelling reasons to deny the accused bond. In an application for bond, the court considers whether the accused will turn up for his trial, which is the primary consideration; whether the accused will interfere with witnesses; the character and antecedents of the accused; whether accused’s life is secure; the nature of the offence and the severity of the sentence to be meted in the event of conviction.
I have considered the affidavits filed herein. Firstly, I must agree with the prosecution that by the accused asking the prosecution witnesses to swear affidavits in support of his application, he has already started interfering with the prosecution witnesses. Even if they are his relatives, he should not have asked them to swear affidavits in an attempt to support his case, which this court is not yet considering at this stage.
Further to the above, the Investigating Officer deponed that the accused fled after the commission of the offence on 25/11/2014 till his arrest on 5/1/2015. That allegation has not been rebutted. There is no guarantee that he will turn up for his trial if released.
I have considered the pre-bail report, and though bond is not seriously opposed but taking into account the fact that the accused has already sought the prosecution witnesses speak on his behalf, and the fact that he fled after commission of the offence, I find that there are compelling reasons that warrant the denial of bond. For the above reasons, I decline to grant accused bond. He will remain in remand pending hearing of his case.
DATED, SIGNED AND DELIVERED THIS 21ST DAY OF JULY, 2015
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Musyoka for State
Mr. Omari Holding Brief for Mbaabu C.P. for accused
Faith/Faith, Court Assistants
Accused, Present