[2017] KEHC 644 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

HIGH COURT CRIMINAL CASE NO. 89 OF 2016

REPUBLIC…………………………………….........… PROSECUTOR

VERSUS

JANE MUTHONI MUCHERU……………….…….......1STACCUSED

ISAACK NG’ANG’A WAMBUI Alias GIKUYU…......2NDACCUSED

BAIL RULING

1. The two Accused Persons, Jane Muthoni Mucheru (1st Accused Person”) and Isaack Ng’ang’a Wambui Alias Gikuyu (2nd Accused Person”), are jointly charged with murder contrary to section 203 as read together with section 204 of the Penal Code. They are accused, together with at least one other of unlawfully killing Solomon Mbuthi Mwangi (Deceased). The 1stAccused Person was first arraigned at the Murang’a High Court on 22/11/2016 when she pleaded not guilty. However, she did not take plea until 29/11/2016 as a mental assessment was yet to be done.

2. Immediately after plea was taken on 29/11/2016, the State applied for the case to be transferred to this Court and the case ended up before me where I held a fully-fledged bail hearing on 06/12/2016 and 13/12/2016.

3. I gave a bail ruling on 20/12/2016 in which I denied bail on account of the need to protect the integrity of the trial process by protecting vulnerable witnesses from the possible influence of the 1st Accused Person. I directed that the bail application be renewed once the vulnerable witnesses had testified.

4. By the time the vulnerable witnesses had testified and Counsel for the 1st Accused Person renewed bail application for his client, the 2nd Accused Person had been charged with the murder of the Deceased and the two cases consolidated. Hence, I considered a new bail application for the 2nd Accused Person as I re-considered bail application for the 1st Accused. I held a bail hearing on 26/07/2017.

5. Mr. Njanja argued the bail application for the 1st Accused Person. He reminded the Court that the Court had conditioned bail on the testimony of vulnerable witnesses who have now testified. His position was that all the vulnerable witnesses had now testified and therefore the 1st Accused Person was eligible for bail.

6. He told the Court that the 1st Accused Person has young children who need her as the single remaining parent. They need her both for their psycho-social as well as economic reasons: the three children (who are also victims of the crime by virtue of being children of the Deceased) are facing hard times at home without a parent; and at school due to hardship raising school fees and money for other needs.

7. Mr. Njanja further argued that the 1st Accused Person is not a flight risk; that she does not even have a passport. Mr. Njanja then addressed the “elephant in the room”: the alleged association between the 1st Accused and Mr. Nelson Njiru who was initially charged as the 2nd Accused in the case but who vanished upon learning that the police are still looking for him. A warrant of arrest has been issued for him but he is suspected to be a fugitive outside Kenya.

8. Mr Njanja claimed that there is no association between Mr. Njiru and the 1st Accused beyond a business relationship between the 1st Accused Person in her capacity as the Principal of Icaciri High School and Mr. Njiru as a service provider (computer serving) to the school.

9. Lastly, Mr. Njanja spent a considerable amount of time discrediting the Prosecution case. His argument was that the strength of the Prosecution case is so tenuous that bail should be granted. He argued that the witnesses so far have given contradictory evidence and many of that the two “star” witnesses – Joseph Kariuki Njuguna and Damaris – are such discredited witnesses the Court should place very little reliance on their evidence.

10. For his part, Mr. Kihanga urged bail for the 2nd Accused Person. He informed the Court that the 2nd Accused Person is a man of straw who was struggling to feed and clothe his young family of a wife and two children as a miraa vendor. The 2nd Accused is the sole bread winner. He is also, Mr. Kihanga submitted, not a flight risk as he does not even possess a passport.

11. Mr.Kihanga pointed out to the Court that the Prosecution had said that it has upto to twenty witnesses which means that the trial is likely to take long. He urged the Court to ignore the affidavit evidence by Detective Clement Mwangi claiming that the 2nd Accused Person is an adherent of Mungiki. This is because, Mr. Kihanga argued, the proceedings of the Court case in which the 2nd Accused was allegedly declared to belong to the proscribed group and bonded to keep the peace were not placed before the Court. In any event, Mr. Kihanga pointed out that bonds to keep the peace were declared unconstitutional recently.

12. Mr. Kihanga referred me to four cases which I have read and considered. They are: R v Danson Mgunya & Another [2010] eKLR; Peter Thuo Muraba v R HCRC Misc App. No. 751 of 2007 at Nairobi; Jane Wambui Wanjiru v R HCRC Misc App. No. 461 of 2009 at Nairobi; R v Joseph Thiong’o Waweru & 17 Others [2017] eKLR.

13. Consequently, both Mr. Njanja and Mr. Kihanga found no compelling reasons to deny bail to both Accused Persons at this point in the trial.

14. Ms. Mwaniki appeared for the State while Mr. Mathenge appeared for the Victim’s family. Both urged the Court to deny bail to both Accused Persons.

15. Ms. Mwaniki pointed out that the application by the 1st Accused Person was a review in view of the Ruling of 20/12/2017. She pointed out that one of the issues the Court had pointed out in that ruling was that it could not use the strength of the prosecution case as a factor to determine bail before any witnesses had testified. Now, at least some key witnesses had testified and the Court had a clear sense of how strong the case against the Accused Persons is, and hence the very high incentive they would have to abscond. The strength of the prosecution case assessed from the key witnesses who have already testified, argued Ms. Mwaniki, constitutes new and compelling evidence why bail should not be granted to the Accused Persons. Ms. Mwaniki referred at length to the testimony of PW4 (Joseph Kariuki Njuguna) and PW5 (Damaris) as well as toxicology report as the strongest factors pointing to the guilt of the two Accused Persons and linking them with the murder of the Deceased. The Prosecution case is, Ms. Mwaniki argued, extraordinarily strong and should constitute a compelling reason for the Court to deny bail.

16. Further, Ms. Mwaniki argued that there are other witnesses who can still be termed as vulnerable who have not testified: they included an Mpesa agent named by both PW4 and PW5 ( “Mpesa Lady”) as well as the two guards from Icaciri High School as well as the Deputy Principal. I should point out that the first three witnesses have since testified and the Deputy Principal will likely have testified by the time I read this ruling. Consequently, this is no longer a major factor.

17. Ms.Mwaniki spared her most vehement argument for the association between the two Accused Persons and Mr. Njiru who is still at large. This is a pointer, she argued, that if granted bail the Accused Persons will similarly abscond. Ms. Mwaniki referred to the Court to the Statement recorded by the 1st Accused Person on 11/11/2016 to refute the allegation that she was not a friend to Mr. Njiru who is at large. The Statement refers to Mr. Njiru in two places:

a. First, the 1st Accused Person describes her visit to the Deceased’s place of work on 04/11/2016 and states that on reaching Gatundu town, she realised that it was too late to rely on public transport. Hence, she “requested a friend, a Mr. Njiru who is also a teacher at Voi University if he could get me a friend who could assist me with a car….” That is how the 1st Accused ended up with vehicle Registration number KCF 405R, a Toyota Sienta, which has featured much in the trial.

b. Second, the 1st Accused refers again to Mr. Njiru when she describes how she returned the car on 06/11/2016.

18. Mr. Mathenge was of similar views. In addition, he argued that the 1st Accused had already told the Court that the children were safe and secure with her sister. Further, he told the Court that the family of the Deceased has offered financial support for the children should any be needed. Mr. Mathenge spent a considerable amount of time demonstrating the strength of the prosecution case.

19. Bail is a constitutional right enshrined in Article 49(1)(h) of the Constitution. The test the Court is required to use to deny bail in appropriate cases is similarly stated in the Article 49(1)(h): it is only upon the showing of compelling reasons by the Prosecution that the Court will deny bail. This test is the same whether on a first consideration of bail or at the review stage.

20. The burden is on the Prosecution to establish the existence of the “compelling reasons” that would justify denial of bail. As I stated in the ruling of 20/12/2016, our decisional law now states that for bail to be denied the evidence relied on to establish the “compelling reasons” required for constitutional reasons must be “cogent, very strong and specific evidence” and that mere allegations, suspicions, bare objections and insinuations will not be sufficient. See, for example, R v Muneer Harron Ismail & 4 Others[2010] eKLR. However, it is also true that the standard of proof required is on a balance of probabilities. There is no requirement that the Prosecution proves the compelling reasons for purposes of bail beyond reasonable doubt. Indeed, such a standard would be impossible to meet at this point in the trial. See, Bail and Bond Policy Guidelines at p. 19.

21. The question presented here, then, is whether the Prosecution has, on a balance of probabilities, demonstrated compelling reasons to continue denying bail to the Accused Persons. Tailored to the arguments by the Prosecution and Victims’ Counsel, here the question is whether the strength of the prosecution case coupled with the risk of absconding jointly constitute compelling reasons to deny bail in this case.

22. In the ruling of 20/12/2016, I explained the proper context of when the strength of the prosecution case can be a legitimate factor in denying bail. The Bail/Bond Policy Guidelines at p. 16 (Paragraph 4. 9(b)) is couched in the following language:

An Accused Person should not be subjected to pretrial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pretrial detention where the evidence of the accused person is strong. For example, where all the prosecution witnesses have testified, and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond and should therefore be denied bail.

23. The Policy Guidelines cited R v Margaret Nyaguthi Kimeu [2013] eKLRfor the last proposition. Ms. Mwaniki has argued that at this point the instant case is on all fours with the Margaret Nyaguthi Kimeu Case. This is because, she argued, the Court has now heard key Prosecution witnesses and has a sense of what direction the trial is taking.

24. In the ruling of 20/12/2016, I expressed the view that while the strength of the prosecution case can be a valid factor in consideration whether bail should be granted and whether there are compelling reasons to refuse bail, it alone, like the nature of the offence, is not sufficient reason to deny bail. The apparent strength (or weakness) of the Prosecution case can be one of the factors that a Court takes into account but it cannot be the anchor reason for denying bail.

25. In the present case, after hearing ten witnesses, I am prepared to say that the prosecution case is not tenuous. I do not wish to say more for the fear of embarassing the remaining trial and pre-judging issues. This in itself would not be sufficient reason to deny bail as I stated above. However, here, it is coupled with the unresolved question of Mr. Nelson Njiru who is a fugitive of justice in this case. Both direct evidence received in Court as well as the statement by the 1st Accused Person establish a connection between Mr. Njiru and both Accused Persons. The almost literal vanishing of Mr. Njiru into thin air should give us pause about the real possibility that the two Accused Persons could follow suit hence subverting justice in this case. Despite Mr. Njanja’s valiant efforts to disassociate the 1st Accused with Mr. Njiru, I believe that her own statement speaks for itself: “I requested a friend, a Mr. Njiru who is also a teacher at Voi University if he could get me a friend who could assist me with a car….” Those are the 1st Accused Person’s own words. It blitzes Mr. Njanja’s denials from the bar.

26. It is a rare and exceptional case when the Court will deny bail to an Accused Person. The circumstances of this case makes this one of those rare and exceptional cases. To mitigate the effect of this decision and balance the rights of the Accused Persons, the Court shall prioritize the hearing of this case. It has already heard the case on two consecutive back-to-back days. Ten out of twenty possible witnesses have been heard. The Court will now set aside, subject to the availability of defence counsels, time to conclude the prosecution case within the next three weeks.

27. Orders accordingly.

Dated and delivered at Kiambu this 6th day of September, 2017.

……………......

JOEL NGUGI

JUDGE