[2016] KEHC 2561 (KLR)
The court found that the prosecution had provided sufficient details regarding threats made by the accused to prosecution witnesses, including the court's own observation of a visibly shaken witness. The court held that threats to witnesses constitute a compelling reason to cancel bail or bond, and that the defense...
Source-derived case information.
- Citation
- [2016] KEHC 2561 (KLR)
- Parties
- Applicant: Republic; Defendant: Mark Muchika
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Murder Case 59 of 2013
- Procedural Posture
- Criminal Murder Case / Ruling on Application to Cancel Bond
- Outcome
- Bond cancelled; accused remanded.
- Judges
- AT Sitati
- Legal Topics
- Bail and Bond, Witness Protection, Threats to Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mark Muchika
Defendant
Procedural Posture
Criminal Murder Case / Ruling on Application to Cancel Bond
Legal Issues
- 1 Whether the accused's bond should be cancelled due to alleged threats to prosecution witnesses.
- 2 Whether the prosecution's application to cancel bond was made in bad faith.
Ratio Decidendi
The court found that the prosecution had provided sufficient details regarding threats made by the accused to prosecution witnesses, including the court's own observation of a visibly shaken witness. The court held that threats to witnesses constitute a compelling reason to cancel bail or bond, and that the defense had failed to establish any nexus between the allegations and malice or business interests. The absence of an affidavit was not fatal to the application given the compelling nature of the evidence presented. The court concluded that the safety of witnesses and the integrity of the trial process outweighed the accused's right to remain on bond under the circumstances.
Court Disposition
Bond cancelled; accused remanded.
Orders
- The bond granted to the accused on 16.12.2013 is cancelled.
- The accused may apply for review of this order after the outcome in Butali SRM Cr. Case No. 2019 of 2015.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL (MURDER) CASE NO. 59 OF 2013
REPUBLIC ………………………………......…PROSECUTOR
VERSUS
MARK MUCHIKA………………........................……ACCUSED
R U L I N G
Introduction
1. The accused person herein is on trial for murder contrary to Section 203 as read with Section 204 of the Penal Code. On 16. 12. 2013, he was admitted to bond of kshs.one million with one surety of a like amount. Hearing is yet to commence because Mr. C.O Samba who appears for the accused was absent when the case came up for hearing on 19. 09. 2016.
Submissions
2. On that same day, the prosecution informed the court that the accused was threatening some of the prosecution witnesses and sought to have the bond granted to the accused person cancelled. Arguments on the prosecution’sapplication were made before me on 28. 09. 2016.
3. Mr. Shivega who held brief for Mr. Samba opposed the application on grounds that the application was not supported by any affidavit and further that the application was made in bad faith and intended only to bring the accused person’s juggery business to its knees. Mr. Ng’etich had told the court that the accused is facing a criminal case of creating disturbance at the Principal Magistrate’s Court at Butali as a result of the threats to some of the witnesses in this case. Mr. Ng’etich also dismissed as lacking merit the contention by Mr. Shivega that the prosecution’s application to cancel bond granted to the accused person was made in bad faith. Mr. Shivega contended that there were no compelling reasons to warrant cancellation of the bond.
Analysis and Determination
4. I have carefully considered the submissions by both Counsel in this matter. I have also carefully considered the guidelines on bail and bond. I note that threats to witnesses is one of the parameters to be taken into account when considering any application for bail/bond and I am of the considered view that it also applies when considering whether or not to cancel bail/bond.
5. In the instant case, I am satisfied that the allegations of threats to witnesses is a compelling reason why bail/bond should not be granted and/or cancelled. This court saw one of the witnesses whose life was said to be threatened by the accused. The witness appeared visibly shaken. I do not find any merit in the accused person’s allegations that the instant application is made out of malice. The accused person did not establish a nexus between the complaint made against him, the witnesses and his business so as to impute malice. Details of the witnesses who are threatened have been furnished to the court.
Conclusion
6. In the result, I cancel the bond granted to the accused person on 16. 12. 2013. The accused may apply for review of this order once the outcome in Butali SRM Cr. Case No. 2019 of 2015 is made known.
Orders accordingly.
Ruling delivered, dated and signed in open court at Kakamega this 6th day of October 2016
RUTH N. SITATI
JUDGE
In the Presence of:-
………………Mr. Ng’etich (present)…………………….......…for State
………………Mr. Getanda for Shivenga (present)………...…for Accused
………………Mr. Okoiti………………………………………..…Court Assistant.