[2022] KEHC 18109 (KLR)

Republic v Maina alias Kajose (Criminal Case E029 of 2023) [2022] KEHC 18109 (KLR) (Crim) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 18109 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E029 of 2023

K Kimondo, J

June 20, 2022

Between

Republic

Prosecution

and

Joseph Kariithi Maina Alias Kajose

Accused

Ruling

1. The accused prays for bail pending trial.

2. His learned counsel, Mr Kibe Mungai, informed the court that the accused has been in police and remand custody for an unduly length of time since the May 5, 2023. He submitted that the accused has been unfairly targeted because the deceased was a member of the Nyumba Kumi local security in Mukuru Kwa Njenga.

3. Counsel submitted that bail is a constitutional right; that the accused is deemed innocent at this stage; that the accused has a known residence and has vied unsuccessfully for an electoral post in the area on three occasions. Regarding his security, he agreed that the accused’s motor vehicle was torched outside his house as an act of revenge. In a synopsis, counsel opined that that in all the circumstances of this case, there are no compelling reasons for denial of bail

4. The application is opposed by the Republic. Learned Prosecution Counsel, Ms M Kigira, relied fully on the replying affidavit of the investigating officer Corporal Joseph Ndivo sworn on June 2, 2023. The objections are four-pronged: Firstly, that there are some accomplices at large with whom the accused may re-group; secondly, that he has no fixed abode and is therefore a flight-risk; thirdly, that his own security would be in jeopardy. On that score, it is averred that the accused’s motor vehicle KBW 225T was torched by an angry public. Fourthly,learned Prosecution Counsel, submitted that the right to bail is not absolute and that in view of the gravity of the charge and possible sentence, bail was not deserved in this case.

5. On June 14, 2023, I heard further submissions from both the learned counsel for the accused and the State.

6. I take the following view of the matter. The accused faces the grave charge of murder. The Director of Public Prosecutions informs the High Court that on the May 5, 2023 at around 17:30 hours in Riara area within Mukuru Kwa Njenga slums in Embakasi Sub-County within Nairobi County jointly with others not before court, murdered Wycliffe Obara alias Mrefu.

7. It is axiomatic that the accused is presumed innocent. Under Article 49 (1) (h) of theConstitution, as read together with section 123A (1) of the Criminal Procedure Code, he is entitled to bail unless there be compelling circumstances.

8. Regarding the phrase, compelling reasons, I am well guided by the decision of Gikonyo J in Republic v Joktan Mayende & 3 others, High Court, Bungoma Criminal Case 55 of 2009 [2012] eKLR.

9. Furthermore, the overarching objective of bail is to ensure the accused attends trial. See Michael Juma Oyamo & another v Republic, Court of Appeal, Nairobi Criminal Appeal 113 of 2018 [2019] eKLR; Muraguri v Republic[1989] KLR 181; R v Fredrick Ole Leliman & 4 others, Nairobi High Court Criminal Case 57 of 2016 [2016] eKLR.

10. When I juxtapose the authorities against the facts here, I find further as follows. I have perused the committal bundle containing witness statements in this case. It is alleged that the deceased was hacked to death by a group of people. Some witnesses pointed to the accused as being part of the attackers. That may explain why the public torched his car.

11. The contention by the Republic that the accused has no fixed abode is tenuous. For instance, the accused claims to be a resident of the slum at Riara Zone and to have a family there. He claims to have contested for a seat for the area in past general elections. A pre-bail report could have shed more clarity. But in paragraph 6 of the replying affidavit the investigating officer avers that the accused’s vehicle “KBW 225T belonging to the accused was burned (sic) by irate members of the public after they stormed into his parking lot”

12. There is a tacit concession then that the accused has a residence in the slum. It would be unjust to say that merely because the accused was living in rental premises in the informal settlement he has no fixed abode. By the same token, and noting that it is well over a month since the incident, it would not be just to deny the accused bail merely because some accomplices are still at large.

13. An important ground relates to the security of the accused. I am satisfied that there is palpable anger that led to destruction of his property. This can however be ameliorated by an order to relocate combined with regular attendances before the Deputy Registrar until conclusion of the trial.

14. In a nutshell, the affidavit by the investigating officer does not disclose compelling reasons for denial of bail.But I will set four stringent conditions to guarantee his attendance to court and to shield the witnesses from any threats or interference.

15. Firstly, the accused may now be released upon executing a cognizance in the sum of Kshs 500,000 (five hundred thousand only) together with one surety of a similar sum. The surety shall be examined and approved by the Deputy Registrar of this Court. In the alternative, he may post a cash bail in the sum of Kshs 700,000 (seven hundred thousand only).

16. Secondly, the accused shall not have any direct or indirect contact with any of the witnesses listed in the committal bundle supplied to the defence counsel and the court until the conclusion of his trial.

17. Thirdly, the accused shall immediately relocate and must not set foot at Riara area in Mukuru Kwa Njenga slums in Nairobi, without prior permission of the court.

18. Fourthly, he must attend a special mention before the Deputy Registrar of the Criminal Division at Nairobi once every three months commencing July 3, 2023 and until the conclusion of the trial or further orders of the court.

19. In default of any of the four conditions above, his bond shall stand cancelled; and, the surety shall be called to account.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF JUNE 2023. KANYI KIMONDOJUDGE**Ruling read virtually on Microsoft Teams in the presence of-Accused.Ms Keru holding brief for Mr. Kibe for the accused.Ms. Gikonyo for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.