[2022] KEHC 10099 (KLR)

Republic v Mose (Criminal Case E71 of 2021) [2022] KEHC 10099 (KLR) (Crim) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10099 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E71 of 2021

JM Bwonwong'a, J

July 12, 2022

Between

Republic

Applicant

and

James Nyatika Mose

Accused

Ruling

The case for the accused/applicant 1. The applicant moved this court pursuant to article 49 (1) (h) of the Constitution of Kenya, section 123 of the Criminal Procedure Code (Cap 75) Laws of Kenya and all enabling laws to be released on bail pending hearing and determination of his trial on a charge of murder contrary to section 203 as read with section 204 of the Penal Code(Cap 63) Laws of Kenya.

2. The application is based on the major following grounds. The accused is innocent and has a constitutional right to bail under article 49 (1) ((h) of the Constitution of Kenya unless there are compelling reasons to deny him bail. The accused has now been in remand for about two months and is a father of three children who require his parental attention. He has a known place of residence in Nairobi within Manyatta area where he has resided for the better part of his adult.

3. In addition to the grounds in support of his application the applicant has deposed to a ten (10) paragraphs supporting affidavit whose major averments are as follows. The applicant is 35 years old and a resident of Manyatta area in Nairobi county.

4. The accused has further deposed that he is the sole bread winner of his family of three children. Additionally, he has deposed that he has been in remand since October 2021 following his arrest on a murder to which he has pleaded not guilty.

5. Furthermore, the accused has deposed that he undertakes to abide by the terms of his release on bail/bond that the court may impose upon him.

The submissions of the accused/applicant 6. Mr. Dawood Hamoud Farrah, counsel for the applicant has submitted that the accused has a right to be released on bail as directed by article 49 (1) ((h) of the Constitution of Kenya unless there are compelling reasons to deny him bail. Counsel for the accused has submitted that the prosecution has not advanced any compelling reasons to deny the accused bail.

7. Furthermore, counsel has submitted based on the case of Republic v Mgunya & Another(2011) EA 36 and the gazetted Judiciary Bail/Bond Guidelines, that what constitutes compelling reasons is well settled in that case and the said guidelines.

8. Counsel further cited the case of Republic v David Muchiri Mwangi (2018) eKLR, which cited with approval the case of Republic v Mgunya & Another (2011) EA 36, in which the court laid down fourteen conditions which the court has to consider in applications for bail pending trial. These conditions include the following, amongst others. The nature of the charge. The strength of the evidence which supports the charge and the punishment to be inflicted. The detention of the accused for his own protection and whether the accused will pose a danger to the public if released on bail. Additionally, the court has to consider the antecedents, associations and community ties of the accused.

9. Counsel has invited the court to release the accused on a bond of shs 250,000/- or cash bail of shs 100,000/- with a surety of a similar amount.

The case for the respondent. 10. The respondent has opposed the application of the accused/applicant through the affidavit of No. 91847 PC Michael Mbugua, the investigating police officer. No. 91847 PC Michael Mbugua, the investigating police officer has deposed to a nine (9) paragraphs affidavit in opposition to the application, whose major averments are as follows. The deceased (John Mutua Kilomo) was murdered by the accused/applicant after he was assaulted by the accused/applicant in Manyatta area within Kayole sub-county in Nairobi.

11. The accused/applicant has no fixed abode and is not in gainful employment.

12. The prosecution has strong evidence against the accused/applicant and are apprehensive that he may flee from the jurisdiction of this court. The accused/applicant does not qualify to be released on bail for his own personal protection since immediately prior to his arrest members of the public administered mob justice upon him. He was by sheer luck that he was saved by administration police officers who were nearby. The neighbours where the accused/applicant used to live are still emotive about the incident. Since the accused is charged with murder he has incentives to abscond if he is released on bail.

The submissions of the respondent 13. Counsel for the respondent (Ms Peris Maina) has filed written submissions in opposition to the application.

14. Counsel has submitted based on the affidavit of No. 91847 PC Michael Mbugua, the investigating police officer, that the accused/applicant is likely to attract the anger of members of the public if he is released on bail at this stage. It is therefore for the protection of the accused/applicant that he be denied bail. Counsel submitted that this corroborated by the evidence of John Mbugua (Pw 3) who testified in court on 22/3/22.

15. Furthermore, counsel has submitted that the accused/applicant will interfere with witnesses if released on bail.

Issues for determination. 16. I have considered the affidavits of the parties and their submissions and the authorities cited in the light of the applicable law. As a result, I find the following to be the issues for determination.1. Whether the accused/applicant is likely to interfere with witnesses.2. Whether the accused/applicant should be denied bail for his own protection.

Issue 1 17. I find from the affidavit of No. 91847 PC Michael Mbugua, the investigating police officer that there is no averment that the accused/applicant is likely to interfere with the prosecution witnesses. It therefore follows that this allegation is not supported by any evidence and I therefore reject it for lacking evidentiary basis.

Issue 2 18. I find that the accused/applicant does not qualify to be released on bail for his own personal protection since immediately prior to his arrest, members of the public administered mob justice upon him. I further find that he was by sheer luck that he was saved by administration police officers who were nearby. Finally, I find that the neighbours where the accused/applicant used to live are still emotive about this incident.

19. Consequently, I find that if the accused/applicant is released on bail he is likely to be lynched by his neighbours; since his neighbours are still seething in anger. I find that this is a compelling reason to deny bail/bond to the accused/applicant.

20. In the premises, the application fails and is hereby dismissed in its entirety.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 12TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMs Omollo holding brief for Mr. Farrah for the accused/applicant.Ms Maina for the /Republic/Respondent