[2022] KEHC 12363 (KLR)
The court found that, despite the State not opposing the bond application, the pre-bail report raised significant concerns regarding the accused's lack of parental care, the absence of a reliable surety to secure his attendance, and the risk of interference with witnesses, particularly given the history of threats...
Source-derived case information.
- Citation
- [2022] KEHC 12363 (KLR)
- Parties
- Applicant: Republic; Respondent: Brian Waweru Kabena
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E003 of 2022
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- bond application dismissed
- Judges
- RB Ngetich
- Legal Topics
- Murder Charge, Bail and Bond, Pre Bail Report, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Brian Waweru Kabena
Respondent
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused should be granted bond pending trial for the offence of murder.
- 2 Whether there is a risk of the accused absconding or interfering with witnesses if released on bond.
Ratio Decidendi
The court found that, despite the State not opposing the bond application, the pre-bail report raised significant concerns regarding the accused's lack of parental care, the absence of a reliable surety to secure his attendance, and the risk of interference with witnesses, particularly given the history of threats to the deceased's sister. The court determined that these factors constituted compelling reasons to deny bond at this stage, prioritizing the safety of witnesses and the integrity of the trial process. The court emphasized that the accused may renew the bond application if circumstances change, but for now, the risk factors outweighed the presumption of bail.
Court Disposition
bond application dismissed
Orders
- Application for bond is hereby dismissed.
- Accused may renew bond application in the event circumstances change.
Full Case Text
Judgment text and source record
28 paragraphs
Republic v Kabena (Criminal Case E003 of 2022) [2022] KEHC 12363 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 12363 (KLR)
Republic of Kenya
In the High Court at Kiambu
Criminal Case E003 of 2022
RB Ngetich, J
June 16, 2022
Between
Republic
Prosecution
and
Brian Waweru Kabena
Accused
Ruling
1. The accused herein Brian Waweru Kabena was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.
2. Particulars are that on the 31st day of December, 2021 and the 1st day of January, 2022 at Munyinyi area of Ndenderu in Kiambaa sub-county within Kiambu County murdered Everlyne Wanjiru Waweru.
3. The substance of the charge and the particulars were read over to the accused on 26th January 2021. The accused denied the charges and a plea of not guilty was entered. Mr. Sede counsel for the accused applied to have the accused released on bond.
4. The State counsel Mr. Gacharia indicated that the state was not opposed to the accused being granted bond/bail.
5. The court called for a pre- bail report. The report was filed on 9th March 2022. I have perused the report. The victim’s family is opposed to the accused being granted bail. The father of the victim indicates the accused is not a first time offender. The accused was charged with the offence of assault but was released on a fine and proceeded to kill the victim within 2 months. The family feels the accused is a risk flight and poses a security threat to the family of the victim.
6. The mother of the accused who lives in abroad is willing to support the accused and procure his attendance in court. The aunt who lives with the accused has indicated she is willing to help the accused and secure his attendance in court.
7. The local administration of Ndenderu referred to the accused and the victim as alcoholics. They are not aware of any criminal record for the accused person. It was also pointed out that the accused lacks proper parental care and is of the view that if the bond is granted the accused will lack any guidance.
8. From the report,the deceased was in a relationship with the accused. The accused admits to having committed an assault on her. The father of the deceased has raised a concern that the accused had issued threats to the deceased’s sister for interfering with their relationship.
9. I have noted the concern of the local administration. The accused lacks parental care. The mother lives in the USA and it is unlikely that she will be able to avail the accused to attend court when required. From the report, the father indicated that he threatened the deceased’s sister against interfering with their relationship.
10. No affidavit has been filed to oppose bond but in addition to the fact that they may not be a closer person to ensure that accused attends court when required, from the report compiled by the probation officer, there are high chances that the accused may threaten witnesses if released.
11. In my view,it will not be safe to release the accused at this stage of trial. I am of the view that the matter be fastracked
Final Orders 1. Application for bond is hereby dismissed.
2. Accused may renew bond application in the event circumstances change.
RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 16TH DAY OF JUNE, 2022. ..........................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court ClerkMr. Seda for AccusedMs. Kihima holding brief for victims family