[2021] KEHC 6503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. 32 OF 2020

BETWEEN

REPUBLIC..............................................................PROSECUTOR

VERSUS

MICHAEL KARIUKI MAMBO...............................1ST ACCUSED

SAMUEL MWAURA GIATHI..................................2ND ACCUSED

SIMON KANYORA NJOROGE............................3RD ACCUSED

RULING

1. MICHAEL KARIUKI MAMBO (1ST Accused), SAMUEL MWAURA GIATHI (2nd accused),andSIMON KANYORA NJOROGE, (3rd accused) are charged with the offence of murder. They all pleaded not guilty. They are presently in pre-trial detention awaiting their trial. Their trial date has not been set.

2. The State does not oppose the bail/bond application for the 1st accused. The State however opposes the application of the 2nd and 3rd accused on the sole ground that on the commission of the alleged offence on 4th August, 2020, the 2nd and 3rd accused relocated from their residence only to be arrested on 20th December, 2020.

3. The investigating officer (I.O.) in this case stated in his affidavit dated 19th January, 2021 that he went to the 2nd accused home on 4th August, and again on 10th September, 2020 but the 2nd accused was not at his home. That the Investigating Officer later arrested the 2nd and 3rd accused persons in December, 2020.

4. The release of all accused persons is also opposed by the victim’s family through the affidavit dated 29th October, 2002, Mugeche Gachau. By that affidavit, Mugeche, a brother of the victim stated that the accused and others at large have threatened the State prosecution’s witnesses. He did not elaborate how the threats had been communicated other than stating that there had been a telephone call made to him which phone call was made by a lady who threatened him.

5. Stephen Njenga Gachau, also a brother of the victim swore that he had been threatened through yet another phone number.

6. One of the phone numbers alleged by those brothers of the victim as being used to threaten them is a phone number of the probation officer who had been requested, by the court, to carry out the pre-bail inquiry and to prepare a report to assist the court determine the bail application.

7. I have considered the opposition, both by the State and the victim’s family and I find that those oppositions are not valid to deny the accused right to be released on bail/bond. Although the Investigating Officer stated the 2nd accused had relocated from his residence after the offence was committed, he failed to inform the court how he formed that opinion. In other words, did he only go to 2nd accused’s home once on the two dates he gave? If he only went once, the question that arises is, how can the 2nd accused be expected to stay at his home when he had not been informed the Investigating Officer would visit his home. How then can he be blamed for not being at his home when he had no prior knowledge of such visit. From the Investigating Officer’s affidavit, it is clear that the 2nd and 3rd accused were arrested in December, 2002 at their home. Similarly, the victim’s family make sweeping allegations against accused persons alleging they have threatened them and other State witnesses. This alleged threat is disproved by the fact that one of the phone numbers they alleged was used to threaten them turned out to be the probation officer’s phone number. That probation officer was carrying out a duty given by this Court to make inquiry to assist this Court determine bail application.

8. All accused have received favourable reports on their release from the probation officers and from the local administration. There is no compelling reason for denying them bail/bond.

9. The consideration of pre-trial release on bail/bond is pervaded by the presumption of innocence before and during trial and until the contrary is proved: See Article 50(2)(a) of the Constitution. Having discounted the opposition to the release of accused pending their trial, the only consideration I need to have is, whether the accused will attend the trial when required. I associate myself with what was stated in the case of REPUBLIC VS. ZIPPOR NZILU (2018) eKLR as follows:-

“I associate myself with the view expressed byMuriithi, JinKELLY KASES BUNJIKA VS. REPUBLIC(supra) that:

‘It is clear that the primary consideration for bail is whether the accused will attend his trial for the charges facing him, and it must, therefore, be a compelling reason if it is demonstrated that “the accused person is likely to fail to attend court proceedings”. The question in this matter becomes whether there is, on a balance of probabilities evidence that the accused is likely to abscond. The accused claims to have a good defence to the charge of escape from custody. The nature of such defence and evidence is not disclosed. The accused merely asserts his “constitutional right to be granted Bond/Bail on reasonable and favourable terms.’”

10. Having considered what the local administration had to say on each accused, I have no doubt the accused will attend trial when required.

11. Accordingly, I grant the following orders:-

(a) The accused, MICHAEL KARIUKI MAMBO, SAMUEL MWAURA GIATHIandSIMON KANYORA NJOROGE,shall be released on their own bond of Kshs.500,000/= and one surety of like sum.

(b) The accused shall not interfere with the prosecution’s witnesses.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF JUNE, 2021.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Ndege

Accused: 1st, 2nd & 3rd Accused present

For 1st Accused: Mr. Soita

For 2nd & 3rd Accused: Mr. Ngigi

DPP: Mr. Kasyoka

COURT

RULING delivered virtually.

MARY KASANGO

JUDGE