[2019] KEHC 3908 (KLR)
The court found that the right to bail is constitutionally guaranteed and can only be denied if the prosecution presents credible and compelling reasons. The pre-bail reports were generally favorable to the accused, and the concerns about interference with witnesses or flight risk were not substantiated by...
Source-derived case information.
- Citation
- [2019] KEHC 3908 (KLR)
- Parties
- Applicant: John Njuguna Maina; Applicant: Anthony Njiba Kamau; Applicant: William Mwangi Kimani (alias Willy); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 22 of 2018
- Procedural Posture
- Bail Application / Pre Trial
- Outcome
- application allowed
- Judges
- BC Koech
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Presumption of Innocence, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njuguna Maina
Applicant
Anthony Njiba Kamau
Applicant
William Mwangi Kimani (alias Willy)
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Pre Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under Article 49(i)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the accused persons bail.
- 3 Whether the accused are likely to interfere with witnesses or abscond if released on bail.
Ratio Decidendi
The court found that the right to bail is constitutionally guaranteed and can only be denied if the prosecution presents credible and compelling reasons. The pre-bail reports were generally favorable to the accused, and the concerns about interference with witnesses or flight risk were not substantiated by affidavits or direct evidence from witnesses. The court determined that any potential risks could be addressed through strict bail conditions and oversight by the police and the court. As such, the prosecution failed to provide compelling reasons to deny bail, and the accused persons were entitled to be released on bond pending trial.
Court Disposition
application allowed
Orders
- Each accused is released on bond of Kshs.1,000,000 plus one surety of like sum.
- Sureties to be approved by the Deputy Registrar of the court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 22 OF 2018
REPUBLIC ............................................................................................................STATE
VERSUS
1. JOHN NJUGUNA MAINA
2. ANTHONY NJIBA KAMAU
3. WILLIAM MWANGI KIMANI (alias)WILLY..........ACCUSED/APPLICANTS
RULING
1. The Accused persons herein Anthony Njiba Kamau, William Mwangi Kimani alias WillyandJohn Njuguna Maina have been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 12th August, 2018 at Joska Township of Matungulu Sub-County within Machakos County jointly murdered JUSTUS SHIKOLI MUSE alias WAINGO.
2. All three accused persons entered a plea of not guilty and matter is now due for trial. Learned counsel for the accused persons has filed an application dated 30/05/2019 seeking that the accused be released on bail/bond pending the trial. The application is supported by grounds on the face thereof as well as in affidavits by each of the Accused/Applicants sworn on even date. The Applicants case is that it is their constitutional right to be admitted to bail as there are no compelling reasons to the contrary which would warrant a denial of bail. It is further the Applicants case that they are ready to abide by the conditions to be imposed by this Honourable court.
3. A replying affidavit sworn by No. 45604 Corporal Johnston Kabubei on 19/06/2019 and filed on 20/06/2019 raised several issues in opposition to the application inter alia; that even though bond is a constitutional right the same is not absolute and that same can be denied where there are compelling reasons; that the 1st accused herein went into hiding after the incident and was only arrested five months later; that the 3rd accused was arrested two months after the alleged murder while the 2nd accused was arrested the same day of the incident; that the 1st and 3rd accused persons are flight risks if released on bond; that there is a likelihood of interference with witnesses if the accused persons are released on bond.
4. This court called for pre-bail reports on the accused persons. The said reports were duly availed and are dated 25/07/2019. The said reports appear favourable to the need to grant the accused persons bond pending the trial save only for the fact that they are likely to interfere with the key witnesses as the accused are a threat to the safety of the witnesses and villagers within Joska area. The family of the deceased appear not opposed to the release on bond on the one hand while at the same time they feel that the case should proceed while the accused persons are in remand.
5. I have considered the rival affidavits and the pre-bail reports. As all accused persons have denied the charges levelled against them then they are deemed to be innocent until their guilt is proved. They now enjoy the presumption of innocence. Article 49(i) (h) of the constitution provides that an arrested person has the right to be released on bond or bail on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released. Even though the investigating officer is opposed to the release of the accused persons on bond, I find the pre-bail reports to be quite favourable. The issue of alleged threats to witnesses can easily be taken care of by stringent conditions where both accused and their sureties are kept on a tight leash. Further any issues of insecurity affecting the accused or the members of public at Joska Township will be taken care of by the police whose sole duty is the maintenance of security for all citizens. Again I note that none of the witnesses concerned have sworn affidavits or written letters regarding issues of interference by the accused persons once released on bond. The right to be released on bond pending a charge or trial is one of the Bill of Rights guaranteed under Chapter Four of the Constitution and can only be denied once credible and compelling reasons have been presented by the prosecution. I find none has been presented.
6. In the result I find the application dated 30/05/2019 has merit. The same is allowed in the following terms:-
(a) Each accused is hereby released on bond of Kshs.1,000,000/= plus one surety of like sum.
(b) The sureties is to be approved by the Deputy Registrar of this court.
(c) Upon release the accused persons shall not interfere with the prosecution witnesses.
(d) The accused shall attend court during mention or hearing dates without fail until the final determination of the case or until further orders of the court.
(e) In default to observe the terms of bond, the bond shall stand cancelled and the accused plus their sureties called to account.
Orders accordingly.
Dated and delivered at Machakos this 2nd day of October, 2019.
D. K. Kemei
Judge