[2016] KEHC 1171 (KLR)
The court found that the pre-bail reports painted a negative picture of all accused persons, indicating they are perceived as common criminals in the community, with a history of criminal conduct and lack of community support. The court considered that the accuseds' presence in the community would intimidate...
Source-derived case information.
- Citation
- [2016] KEHC 1171 (KLR)
- Parties
- Respondent: Republic; Applicant: M’Mbura Mwithalie; Applicant: Alice Kathambi; Applicant: Peter Mugambi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 85 of 2014
- Procedural Posture
- Criminal Case / Ruling on Bond Application Pending Trial
- Outcome
- application for bond dismissed; accused to remain in remand pending trial
- Judges
- RPV Wendoh
- Legal Topics
- Bail and Bond, Pretrial Detention, Murder Charge, Flight Risk, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
M’Mbura Mwithalie
Applicant
Alice Kathambi
Applicant
Peter Mugambi
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Application Pending Trial
Legal Issues
- 1 Whether the accused persons should be granted bond pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny bond under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that the pre-bail reports painted a negative picture of all accused persons, indicating they are perceived as common criminals in the community, with a history of criminal conduct and lack of community support. The court considered that the accuseds' presence in the community would intimidate witnesses, and that their security could not be guaranteed due to the risk of revenge attacks. Although no formal criminal records were produced, the court gave weight to the community's and local administration's knowledge of the accuseds' conduct. The court concluded that there were compelling reasons to deny bond, including risk of flight, interference with witnesses, and threats...
Court Disposition
application for bond dismissed; accused to remain in remand pending trial
Orders
- The application for bond is dismissed.
- The accused persons shall remain in remand pending trial.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 85 OF 2014
REPUBLIC.....................................................................PROSECUTOR
VERSUS
M’MBURA MWITHALIE................................................1ST ACCUSED
ALICE KATHAMBI........................................................2ND ACCUSED
PETER MUGAMBI........................................................3RD ACCUSED
RULING
By the Notice of Motion dated 28/7/2016 brought pursuant to Article 49(1) (h) of the Constitution, the three accused, M’Mbura Mwithalie, Alice Kathambi and Peter Mugambi seek to be released on bond pending the hearing of this case where they are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
The application was supported by an affidavit sworn by Peter Mugambi, the 2nd accused on behalf of all the three accused. He deponed that they are all Kenyan citizens who come from Kathelwa village, have fixed places of abode and are not a flight risk; that they have no past criminal records and are ready to abide by any conditions that the court may impose and will attend court as will be required of them.
The application for bond was opposed and the Investigations Officer, IP Antony Khamala, swore an affidavit in which he stated that after the alleged murder, the accused were nearly lynched by the members of public were it not for the Police intervention; that all the prosecution witnesses are neighbours to the accused persons and that there is a high likelihood of interfering with them if released on bond.
The court also called for pre-bail reports which have been filed. I have considered the affidavits together with the pre-bail reports.
The primary consideration in an application for bond is whether the accused will turn up for his trial. Other considerations include, whether the accused will interfere with witnesses; whether the accuseds’ security is guaranteed and the accused’s past conduct or antecedents.
In this case, the pre-bail reports paint a very negative picture of all the accused. The accused 1 is said to be a common criminal in the community; that the scars on his body are a result of beatings after theft he has committed and that he was nearly lynched were it not for the Police.
Similarly, Accused 2 is said to associate with criminals in the area, irresponsible in that she abandoned one of her children who had to be taken to a children’s home.
Likewise, Accused 3 is said to be a common criminal in the locality and nobody is willing to stand surety for him.
Though the prosecution has not produced any previous criminal records in respect of the accused, the members of the community and local administration will usually know the conduct of its members. In respect of Accused 1, it was said that the scars on his body have been secured because of being beaten after theft of miraa.
If indeed the accused are common criminals, then the witnesses will feel intimidated by their very presence in the community. Besides, the reports indicate that the society is not yet ready to have the accused and are likely to suffer from revenge attacks if released.
For all the above reasons, I am convinced that the accused may be flight risks and their security may not be guaranteed if released on bond.
In the end, I find that there are compelling reasons to deny the accused persons bond. I dismiss the application. They will remain in remand pending trial.
DATED, SIGNED AND DELIVERED THIS 7TH DAY OF NOVEMBER, 2016.
R.P.V. WENDOH
JUDGE
7/11/2016
PRESENT
Mr. Mulochi for State
Mr. Igweta for Accused
Ibrahim/Peninah, Court Assistants
Acused, all present