[2014] KEHC 1389 (KLR)
The court found that although bail is a constitutional right, it may be denied where compelling reasons exist. In this case, the prosecution demonstrated a real risk that the applicant, if released, could interfere with prosecution witnesses who are his relatives. The court considered this risk sufficient to...
Source-derived case information.
- Citation
- [2014] KEHC 1389 (KLR)
- Parties
- Respondent: Republic; Applicant: Joel Mainga Muthembwa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 of 2014
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- application for bail disallowed
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Joel Mainga Muthembwa
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the applicant bail, specifically the risk of interference with prosecution witnesses.
Ratio Decidendi
The court found that although bail is a constitutional right, it may be denied where compelling reasons exist. In this case, the prosecution demonstrated a real risk that the applicant, if released, could interfere with prosecution witnesses who are his relatives. The court considered this risk sufficient to constitute a compelling reason to deny bail at this stage, in order to protect the integrity of the trial process and ensure that witnesses are not suppressed or influenced. The court further noted that the application for bail could be renewed after the key witnesses have testified, indicating that the denial is not absolute but conditional upon the progress of the trial.
Court Disposition
application for bail disallowed
Orders
- The application for bail pending trial is disallowed.
- The applicant may renew the application after key witnesses have testified.
Full Case Text
Judgment text and source record
32 paragraphs
No. 431/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 20 OF 2014
REPUBLIC………………………………………………….....PROSECUTOR
VERSUS
JOEL MAINGA MUTHEMBWA …………….........……………….ACCUSED
RULING
The application dated 27th June, 2014 is for bail pending trial. The appellant/accused seeks to be released on bail/bond on terms that the court may find necessary to impose. The application is based on grounds that:
The applicant is by law presumed innocent till proven guilty.
It is only fair and in the interest of justice that this application be granted.
The applicant will suffer irreparable harm by having stayed in custody before the determination of his case.
In a response thereto the State opposed the accused’s release on bail. Relying on an affidavit deponed by No. 76939, P.C. George Kamau it was stated that if released the accused/applicant would target prosecution witnesses and interfere with them since he is their relative; the sentence to be meted out in case of a conviction is an incentive for him to abscond and that bail is not absolute.
Bail is a constitutional right. But where there are compelling reasons then it should be denied. The paramount issue the court should consider is whether the accused will turn up for trial. In the premises it is important to consider what else can be a compelling reason to deny an accused person bail. In the case of Republic versus Joshua Kibet Cheriot & Co. HCR C. No. 6 of 2010 it was stated thus:-
“Compelling reasons in Article 49(1) (h) of the Constitutional are not defined. But, must to my mind, mean reasons that show or prove that it is not in the interest of justice to release the accused persons on bail… the reasons on opposition to bail or bond must be cogent and must leave no doubt that justice will suffer if an accused is released on bail or bond.”
In the case of Alhaji Mujahid Dukubo- Asari versus Federal Republic of Nigeriathe court set out some essential criteria. Justice Ibrahim Taniko Mohammed J.S.C held that;-
“When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others the following;
the nature of the charges
The strength of the evidence in the event of conviction.
the gravity of the punishment in event of conviction
The probability that the accused may not surrender himself for trial.
The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
The likelihood of further charges being brought against the accused.
the probability of guilty
Detention for the protection of the accused.
The necessity to procure medical or social report; ending final disposal of the case”.
The criteria alluded to in this particular case is interference with witnesses. It has been stated that witnesses expected to testify are the accused person’s relative. Consequently, the prosecution is apprehensive that the accused may suppress them. This would not be in the interest of justice. It would be just for the prosecution to call witnesses who are related to the accused prior to being granted the freedom of associating closely with them. In the circumstances the reason given warrants the accused being denied bail at this stage and I so order.
The application could however, be renewed soon after the key witnesses testify.
The application is hence disallowed.
DATED, SIGNED and DELIVERED at MACHAKOS this 5TH day of NOVEMBER, 2014.
L.N. MUTENDE
JUDGE