[2023] KEHC 26580 (KLR)

Republic v Katumbu & 2 others (Criminal Case E028 of 2023) [2023] KEHC 26580 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26580 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E028 of 2023

MW Muigai, J

December 13, 2023

Between

Republic

Prosecutor

and

Everlyn Wanza Katumbu

1st Accused

Faith Nthemba Kyalo

2nd Accused

Phyllis Nzula Mbithi

3rd Accused

Ruling

Background 1. The accused persons herein were charged with the offence murder contrary to Section 203 as read with Section of the Penal Code (Cap.63), Laws of Kenya.Particulars of the offenceEverlyn Wanza Katumbu, Faith Nthemba Kyalo And Phyllis Nzula MBITHI: On the 25th day of August,2023 at Mlolongo Phase 11 in Athi River East Sub-County within Machakos county jointly murdered Jeniffer Mwende Musila.

2. On 15th November,2023 the consolidated charge sheet was read to the accused persons in Kiswahili in terms of statement of the offence and particulars of the offence and each of the accused persons pleaded not guilty.

3. The plea of not guilty was entered for each of the accused persons on the consolidated charge sheet.

Bail/bond application 4. On 15th November,2023, Counsel for the accused persons made an oral application for reasonable bond terms to be granted to the accused persons. The Advocates did not file written submissions.

Affidavit Opposing the Bail/Bond 5. The bail/bond application was opposed vide an affidavit dated and filed in court on 12th October,2023, sworn by Sgt Optat Nyange, the Investigating Officer herein, wherein he deposed that the matter was reported at Mlolongo Police Station vide OB 37/30/8/2023 as missing person report by the deceased brother Maithya Muthui that the deceased had disappeared on 25th August,2023 after receiving a phone call to go and offer her services of hairdressing near police line never to return.

6. According to the Investigating Officer, the 1st Accused returned secretly in the wee hours of 10/9/2023 and she was arrested in an intelligence led operation as she was trying to escape to unknown destination.

7. Further, the 2nd accused person was arrested at Master- mind Tobacco premises disguising herself as a worker on 12/9/2023.

8. He objected the application for bail/bond that the two accused persons should not be released because witnesses in this matter live nearby with them and they know them and if released they are likely to interfere and intimidate witnesses.

9. He also objected to bail /bond on the basis that one suspect is still at large and if released may render his/her arrest difficult to effect as they shall be in full communication.

10. He strongly opposed their release on bail/bond pending the hearing and determination of this matter following reasons:a.The accused persons are a flight risk, indeed after the commission of the offence which occurred at Mlolongo market, the accused person went into hiding and were arrested several days after the police traced their whereabouts with the help of an intelligence report.b.That the accused persons are alleged to have committed the offence while in the company of another person who is still in hiding. That in the event the accused are released on bail, there is a likelihood of them colluding with their accomplice to make it impossible for the police to find the accomplice.c.The accused persons likely to interfere with witnesses who are well known to them if they are released on bail.d.He prayed that the accused persons be denied bail as they are likely to be harmed by members of the public particularly from the area where they murdered the deceased.e.The prosecution will endeavor to avail witnesses in good time so that this matter is heard and determined without unreasonable delay.

11. He prayed for the accused persons to be denied bail/bond so as to ensure they appears in court without absconding as the evidence indicates they murdered the deceased.

12. Deposing that this Honorable Court dismisses the instant Application for bail pending trial as there exists compelling reasons to deny the accused bail.

Replying Affidavit to the Affidavit Opposing Bail/bond 13. The affidavit in reply to the affidavit opposing Bail/Bond dated 24th November,2023 and filed in court on 27th November,2023 sworn by John Maina Ndegwa, Counsel for the accused persons herein, wherein, he deposed that he has been in contact with the accused person whom he represents and he stated that contrary to paragraph 5 of the affidavit opposing bail/bond, the accused is not a flight risk and the deponent of the opposing affidavit of bail/bond has seemingly adjudged the accused as guilty and preemptive of issues which are yet to be determined by the court.

14. He stated that the accused object to paragraph six (6) of the affidavit opposing bail/bond and stated that the accused person was apprehensive of her life after she lost her phone in the ensuing melee after being labelled as the prime suspect in the said murder which she still maintains her innocence.

15. He stated further that the accused person refuted paragraph 7 and 10 (a) (b) of the affidavit opposing bail/bond and stated that at the time of the said arrest she was not found with any passport and/or pass depicting her motive to flee into the neighboring country and as a Kenyan she is free to travel to any part of the Republic without imputing improper motive on her.

16. Deposing that the accused person has permanent home of abode at her ancestral home where her parents live and upon her release on bail/bond she will reside there and has no intention to move back to Mlolongo thus will not interfere nor intimidate the witnesses as claimed by the deponent of the opposing affidavit of bail/bond and averred that such claims are speculative with no prove on record.

17. It was deponed that the accused has constitutional right of bail/bond under Article 49 (1) (h) CoK 2010which right is unfettered and the accused can only be denied bond/bail only under compelling reasons. Further that the accused has right under Article 50 (2) (a) CoK 2010 and to be adjudged innocent until the against her is tested.

18. Deposing further that the accused person is a single mother minors aged 2 and 10 years respectively and she is the sole winner of the family and the continual incarceration of the accused continue to mete untold psychological anguish on the minors who are of tender age and need care of their mother and currently they are with their grandmother who is elderly and has no means to finance their daily needs.

19. It was opined that Jennifer Mueni, sister to the accused who lives in Tala and care of Identity Number 24829054, and mobile Number 0708868544 and Agnes Mutete, mother of the accused who lives in Kitui and care of Identity Number 20496369, and Mobile Number 0741942467 have freely consented to be the contact persons to guarantee her attendance as may be directed by the court.

Replying Affidavit to the Affidavit Opposing Bail/bond 20. Vide a replying affidavit dated and filed in court on 5th December, 2023 sworn by Mutava Titus Musyoki, Counsel for the 1st and 2nd accused persons, herein, wherein he deposed that the affidavit opposing the bail/bond of the accused persons is baseless, totally devoid of merit and thus must fail, the Investigation officer has come to this court with unclean hands and therefore undeserving the attention of this court, the affidavit is filled with untruth and that the accused are not flight risk, and have a fixed place od aboard and known permanent residence.

21. Deposing that the allegations in paragraph 7 (a)- (e) of the affidavit by SGT Optat Nyange are untrue and the same is not substantiated either by attachments or otherwise. Further that the alleged 3rd accused person has since been arrested and charges already been preferred against her.

22. He deposed that the request by the Investigating Officer to deny the two accused persons bail and proceed to do justice to them by granting them reasonable bail/bond terms.

Determination/Analysis 23. I have considered the oral application for reasonable bond terms, the affidavit opposing bail/bond and the Replying Affidavit to the Affidavit Opposing Bail/Bond.

24. Pursuant to Article 49 (1) (h), “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.”

25. Further, by dint of Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence. Hence, in the Bail and Bond Policy Guidelines, it is recommended that:“The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.” (Emphasis added)

26. Accordingly, Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates that:“(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—a.the nature or seriousness of the offence;(b)the character, antecedents, associations and community ties of the accused person;(c)the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;(d)the strength of the evidence of his having committed the offence;(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection.”

27. And, in the Bail and Bond Policy Guidelines, it is restated as a general guideline in Paragraph 4. 9 that:“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences.”

28. The Guidelines then offer the following non-exhaustive factors for consideration in bail applications:(a)a] The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.(b)The strength of the prosecution case.(c)The character and antecedents of the accused person.(d)The failure of the accused person to observe bail or bond terms.(e)The likelihood of interfering with witnesses.(f)The need to protect the victim or victims of the crime.(g)The relationship between the accused person and the potential witnesses.(h)The best interest of child offenders.(i)The accused person is a flight risk.(j)Whether the accused person is gainfully employed.(k)Public order, peace and security.(l)Protection of the accused persons.

29. Taking into account the legal provisions on bail and bond and in light of the oral application made by the Counsel for the accused persons and in consideration to affidavit opposing the bail/bond and further to the forgoing, the Replying Affidavit to the Affidavit Opposing Bail/Bond. I am enjoined to consider the following issues that in my view arises for determination.a.The nature of the charge or offence; the seriousness of the punishment to be meted if the accused persons are found guilty and the strength of the prosecution case.b.Whether or not the release of the accused persons on bail/bond would work against the public order, peace and security; or otherwise expose them to peril.c.The likelihood of the accused persons interfering with witnesses and the need to protect the victim or victims of the crimed.Whether indeed the accused persons are a flight risk.

30. As to the nature of the offence and the seriousness of the punishment likely to be meted if the accused persons are ultimately found guilty, it is note worthy that the offence of murder is one of the most serious offences in the land; and that it entails the death penalty. Thus the approach previously taken, before the mandatory aspect of the death penalty was done away with by the Supreme Court of Kenya in Francis Karioko Muruatetu & Others vs. Republic [2017] eKLR, was that, given the seriousness of the charge and the possible outcome of a conviction, the temptation to jump bail if released on bond was a key consideration.

31. Thus, in Watoro vs. Republic [1991] KLR 220, it was held thus:“The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody … the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question: it has happened before, and in similar cases…the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction…” (Emphasis added)

32. It has been held in very many authorities that in the current constitutional order, murder is an offence like any other for the purposes of bail pending trial; and therefore, a bail application in a murder case, as in any other case, has to be looked at from the prism of Article 49(1)(h) of the Constitution; and the key question that takes Centre stage is whether the accused person will turn up for his trial if released on bond.

33. I associate myself with the findings of Hon. Ibrahim, J. (as he then was) in Republic vs. John Kahindi Karisa & 2 Others [2010] eKLR that:“This Constitutional provision came into force after the promulgation of the New Constitution. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is Death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence e.g. murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.” (Emphasis added)

34. Having looked the forgoing authorities, the question that begs an answer is when determining the seriousness of the offence and/or punishment to meted on the accused, at what stage of the case should the court form an opinion that the prosecution has a prima facie case having regard to evidence adduced that the case will lead to a particular direction?

35. The Court has not heard evidence, in my view the Court will form an opinion that the case will take a particular direction where the prosecution witnesses have testified in court and their evidence is so cogent that even the accused in his defence cannot controvert. The evidence adduced has to be overwhelming, uncontroverted and weighty. In the present application, it is my considered view that it is premature, if not impossible at this stage of the proceedings, to engage in an appraisal of the prosecution evidence and determine which direction it will lead to.

36. As to the consideration of the element of public order, peace and security, it deponed in the opposing affidavit to bail/bond that the accused persons are likely to be harmed by members of the public particularly from the area where they murdered the deceased. On the other hand, at paragraph 4 of the replying affidavit to the affidavit opposing bail/bond it is lamented inter alia therein that the accused person was apprehensive of her life after she lost her phone in the ensuing melee after being labelled as the prime suspect in the said murder which she still maintains her innocence.

37. In the upshot of above and in the circumstances surrounding the arrest of the accused persons and bearing in mind that the accused persons may be lynched by the public who in my view consider them as individuals who committed the alleged offence it will be befitting to balance the safety of the accused vis a vis the public anger against them if a fair and expeditious trial is to be reached. It is confirmed by the Counsel for the 1st accused that his client is apprehensive of her life in the ensuing melee after being labelled as the prime suspect in the said murder. It would therefore in my view a disservice and improper if the accused persons are released to the irate public for them to be lynched and maimed; that would not serve the purpose of bail/bond hence in my view I find this limb compelling to deny the said bail/bond.

38. Odunga, J. in Republic vs. Robert Zippor Nzilu [2018] eKLR that:"...in cases where limitations to the right to bail contemplated above exist, the Court must, as provided in Article 24(1)(e) of the Constitution, be satisfied that there are no less restrictive means to achieve the purpose other than the denial of bail. In other words, the Court is required to explore the possibility of achieving the primary objective of granting bail, which is the attendance of the accused at the trial, by imposing such conditions that would ameliorate the possibility of the exceptions being a hindrance to the fair trial….”

39. According to Thesaurus English Dictionary, the word compelling means forceful, convincing, persuasive, undeniable and gripping. Hence in my view, the fact that the Investigating Officer in his affidavit opposing the bail/bond wherein he deponed that the accused persons are likely to be harmed by members of the public particularly from the area where they murdered the deceased, which was affirmed by a replying affidavit sworn by the counsel for the accused person that the accused person was apprehensive of her life after she lost her phone in the ensuing melee after being labelled as the prime suspect is in my view convincing, persuasive, undeniable and gripping.

40. I concur with case of Lydia Jelagat Kipngetich v Republic [2022] eKLR where W. Korir J observed that:It is the Respondent’s case that the Applicant disappeared immediately after the offence was committed and went to hide at her sister’s place in another county. In reply, the Applicant’s counsel submitted that she fled home in fear for her life. In the pre-bail report, the probation officer confirms that there still exists animosity between the Applicant and the family of the deceased. The scenario painted by both sides before this Court is one of a hostile environment where the life of the Applicant will be at risk if she is allowed back to the community. The right to bail of the Applicant must be viewed alongside her right to life. (Emphasis added)

41. As to the issue of interfering with witnesses, the Investigating Officer at paragraph 6 of the affidavit opposing bail/bond deposed that the two accused persons should not be released because witnesses in this matter live nearby with them and they know them and if released they are likely to interfere and intimidate witnesses and that one suspect is still at large and if released may render arrest difficult to the effect that they shall be in full communication.

42. On the other hand, counsel for the accused persons opined that the accused person is safe at her ancestral home and the allegations are unfounded. I find that the accused persons and the witnesses live within the same locality and that the state is apprehensive that if released they might/will interfere with the said witnesses who are well known to them. These assertions have not been controverted by the accused persons hence in my view the accused will mostly likely interfere with the said witnesses which will in essence jeopardize the case.

43. In reference to the above, I associate myself with the case Felity Sichongi Nyangesa vs Republic (2014) eKLR where it was held that:“where there is evidence of the accused interfering with witness’s that was compelling reasons not to exercise discretion in favour of the applicant.” (Emphasis added)

44. As to the apprehension that the accused persons are a flight risk, the Investigating Officer in this matter deponed at paragraph 4 of the affidavit opposing bail/bond that the 1st accused person returned secretly in the wee hours of 10/9/2023 and she was arrested in an intelligence led operation as she was trying to escape to unknown destination.

45. At paragraph 5 of the said affidavit it was deposed that the 2nd accused was arrested at Master mind Tobacco premises disguising herself as a worker on 12/9/2023, and further at paragraph 7 (a) of the said affidavit it was lamented that the accused persons are a flight risk, indeed after the commission of the offence which occurred at Mlolongo market, the accused persons went into hiding and were arrested several days after the police traced their whereabouts with the help of an intelligence report. On the other hand, counsel for the accused persons refuted the contents of paragraph 7 and (a) (b) of the affidavit opposing bail/bond and stated that at the time of the said arrest she was not found with any passport and/or pass depicting her motive to flee into the neighboring county and as Kenyan she is free to travel to any part of the republic imputing improper motive on her.

46. Bearing in mind that the standard of proof at this stage is simply on a balance of probabilities; I am convinced that, given the circumstances in which the two accused persons were arrested, and after several days of the victim’s disappearance, it is more probable than not that they were intent on fleeing from the jurisdiction of the Court. It is undeniable fact that the accused persons were arrested several days[2 weeks] and 3rd Accused [after 2 months] after the commission of the offence and were trying to evade arrest as the 1st accused was trying to escape to an unknown destination and the 2nd accused person disguising herself as a worker at Master Mind Tobacco are in my view an indicative of motive that they were fleeing the court’s jurisdiction even before they were arrested. Despite counsel for the accused putting effort to explain that the 1st accused was not found with the passport and/pass and is free to travel to any part of the Republic is enough in my view to reach a conclusion that they were running away from the authorities hence, there is no guarantee that they will attend court if released on bond having evaded the arrest from the onset. Disposition1)The matter was consolidated after Accused persons were arrested at different times places and circumstances from the date of disappearance of the victim. Various applications were filed; 1st & 2nd Accused persons complained of molestation and assault at the Police station and Counsel for the accused persons sought the accused persons are examined at the hospital and relocated from police station to custody.2)Secondly, the Pre- Bail Reports by the Probation Officer were not prepared and presented to Court for consideration and dealing with the issue of bond. I hereby task the Reports to be prepared and availed to Court on 25/1/2024 before DR MHC for mention in Court 1 on 8/2/2024. 3)Thirdly, the Investigation Officer who was willing to take the stand and testify and be cross examined which the Court withheld for now, intimated that there is a person of interest still at large and investigations are ongoing. (whether it is one who was recently arrested and/or another it is not clarified)4)In the upshot of the forgoing and having regard to the circumstances this case, I find that the application by the accused persons must fail at this stage based on the considerations above. A compellable reason based on the Investigation Officer’s Affidavit and circumstances of Accused persons arrests has been given for the continued stay in custody of the accused persons for now. Consequently, the application for their release on bond is declined for now. The Court will await completion of investigations, position regarding the person still at large the doctor’s examination issue(s) the Pre- Bail Reports and testimony of Investigation Officer if required.5)FMD on 8/2/2024It is so ordered.

RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS13TH DAY OF DECEMBER 2023. (VIRTUAL/PHYSICAL CONFERENCE)M. W. MUIGAIJUDGEIn the presence of:Mr. Mwongera For ODPPCounsel for 1st & 2nd Accused -absentCounsel for 3rd Accused -absent