[2018] KEHC 6002 (KLR)
The court found that the only compelling reason previously relied upon to deny bail—the threat to key witnesses—no longer existed, as those witnesses had already testified. The prosecution's new argument regarding the applicant's lack of fixed abode was not previously relied upon and was not substantiated as a...
Source-derived case information.
- Citation
- [2018] KEHC 6002 (KLR)
- Parties
- Respondent: Republic; Applicant: Justus Munyua Mwasya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2017
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- bail_granted
- Judges
- FN Muchemi
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Witness Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Justus Munyua Mwasya
Applicant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial for murder.
- 2 Whether there are compelling reasons to deny bail under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that the only compelling reason previously relied upon to deny bail—the threat to key witnesses—no longer existed, as those witnesses had already testified. The prosecution's new argument regarding the applicant's lack of fixed abode was not previously relied upon and was not substantiated as a compelling reason. The home enquiry report was positive, with the applicant's family and area Chief confirming his stable character and willingness to accept him back. The court concluded that there were no compelling reasons to continue denying bail and ordered the applicant's release on bond with sureties.
Court Disposition
bail_granted
Orders
- The applicant/accused person is released on bond of Kshs. 300,000 with two sureties of similar amount.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL CASE NO. 7 OF 2017
REPUBLIC ..........................................................................PROSECUTION
VERSUS
JUSTUS MUNYUA MWASYA.............................ACCUSED/APPLICANT
R U L I N G
1. This is an application made orally in court on 14/05/2018 for bail pending hearing and determination of the case.
2. The accused person is charged with murder contrary to Section 203 and 204 of the Penal Code.
3. The plea was taken on 18/07/2017 and a plea of not guilty was entered. Three (3) prosecution witnesses have been heard so far leaving seven (7) of them.
4. In his application dated 22/09/2017 the accused applied for bail which was declined on grounds that key witnesses had been threatened at the time he was at large and the prosecution feared that there is a probability of harming them with a view of destroying evidence.
5. This oral application is based on the grounds that the key witnesses have now testified and that there are no compelling reasons given by the prosecution for not releasing the accused no longer exist.
6. The application was opposed by the prosecution on grounds that the accused had no fixed abode. He had said earlier that he was a resident of Embu but it was later discovered that he had only rented a house there before he was arrested. The prosecution still fears that if the accused is released on bond he may not attend court.
7. The ruling of the court on the earlier bail application delivered on 5/12/2017 declined to grant bail on only one ground of threatening witnesses. The issue of having no fixed abode arose during the hearing of the said application but was not a reason for dismissing the application.
8. The prosecution did not deny that the key witnesses who had been threatened have already testified. As such, I find the prosecutions have no compelling reason for not releasing the applicant at this stage.
9. The court called for a home enquiry report on the applicant which was positive. The probation officer explained that she had interviewed the family of the accused and that of the deceased. The deceased’s family still habours some fear that in the event the applicant is released on bond, he may retaliate on the family members. The security of every citizen is in the hands of the State and governed by the law. The family of the deceased is entitled to protection of the law in the event that it is so desired.
10. The family of the applicant are willing to accept him back in his home area in Mwingi pending the disposal of the criminal case. The Chief of the area confirmed that the applicant is a person of stable character as he knew him before the commission of the offence and is not a security risk.
11. I find that no compelling reason have been presented by the prosecution for not releasing the applicant on bond.
12. It is hereby ordered that the applicant/accused person be released on bond of Kshs.300,000/= with two (2) sureties of similar amount.
DATED, DELIVERED AND SIGNED AT EMBU THIS 26TH DAY OF JUNE, 2018.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Mbaluka for applicant/accused person
Applicant/accused person