[2023] KEHC 22686 (KLR)
The court found that the prosecution had presented compelling reasons to justify withholding bond or bail for the accused persons. Specifically, the investigating officer's affidavit raised concerns about the risk of the accused interfering with witnesses, who were in the process of being placed under protection,...
Source-derived case information.
- Citation
- [2023] KEHC 22686 (KLR)
- Parties
- Respondent: Republic; Appellant: Johnstone Makau Muendo
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E014 of 2023
- Procedural Posture
- Criminal Appeal / Ruling on Bond Application
- Outcome
- Bond or bail denied; accused to remain in custody until circumstances change.
- Judges
- SM Githinji
- Legal Topics
- Bail and Bond, Compelling Reasons, Witness Protection, Flight Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Johnstone Makau Muendo
Appellant
Procedural Posture
Criminal Appeal / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons should be granted bond or bail pending trial.
- 2 Whether the prosecution has established compelling reasons to justify denial of bond or bail.
Ratio Decidendi
The court found that the prosecution had presented compelling reasons to justify withholding bond or bail for the accused persons. Specifically, the investigating officer's affidavit raised concerns about the risk of the accused interfering with witnesses, who were in the process of being placed under protection, and the risk of flight to Tanzania. The court held that these factors constituted sufficient grounds to temporarily deny bond or bail, pending a change in circumstances that would favour the granting of such relief. The constitutional right to bond or bail is not absolute and may be limited where compelling reasons are established by the prosecution.
Court Disposition
Bond or bail denied; accused to remain in custody until circumstances change.
Orders
- The application by the prosecution for temporary denial of bond or bail is granted.
- The accused persons shall be held in custody until the stated circumstances change to favour granting bond or bail.
Full Case Text
Judgment text and source record
22 paragraphs
Republic v Muendo (Criminal Appeal E014 of 2023) [2023] KEHC 22686 (KLR) (25 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22686 (KLR)
Republic of Kenya
In the High Court at Malindi
Criminal Appeal E014 of 2023
SM Githinji, J
September 25, 2023
Between
Republic
Prosecution
and
Johnstone Makau Muendo
Appellant
Ruling
CORAM:Hon. Justice S. M. GithinjiAppellant in personMs Mutua for the State 1. The four applicants were charged onAugust 16, 2023 with the offence of murder contrary to section 203 as read with section 204 of thePenal Code, chapter 63 of the Laws of Kenya.
2. The particulars of this offence are that on November 16, 2022 at around 03:00hours at Mazeras/Mgumo Wa Pasta sub location, Ganga “B” village within Rabai sub county, the accused jointly with another before court, within Kilifi county, murdered Anderson Tsuma Mazia.
3. In the file there is an affidavit made by the investigating officer, who had deponed that the accused are a flight risk and there is intelligent report that they are likely to flee to Tanzania. It’s also indicated that they are likely to interfere with witnesses and may therefore jeopardize the prosecution case.
4. After we took plea the prosecutor averred that they have started the process of having some witnesses put under protection and bond can be withheld till the process is completed.
5. Mr Mouko applied for bond in respect of all the accused persons. He averred that the alleged affidavit is an ambush to the defence as they were not served with the same. The alleged affidavit is not commissioned and is not properly in court. There is no compelling grounds upon which bond to the accused person, of which is a constitutional right, should be curtailed.
6. Under article 49 (1) (h) of the Constitution of Kenya, 2010, bond or bail is not an absolute right to an accused person. It can be curtailed on compelling reasons availed by the prosecution. In this case the investigating officer has expressed grounds for fear that the accused persons if released may interfere with witnesses who are already in process of being placed under protection. There is also a chance that they may flee to Tanzania. The prosecution requested for temporary denial of release on bond or bail, to enable them place some witnesses under protection. This to me avails compelling reason on which the bond can be withheld or denied. I therefore do find the application by the prosecution merited and is hereby granted.
7. The accused will be held in custody till the stated circumstances changes to the advantage or favour of granting bond or bail.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 25THDAY OF SEPTEMBER, 2023…………………S.M.GITHINJIJUDGEIn the Presence of; -1. The Appellant in Person2. Ms Mutua for the Prosecution3. Ms Mawiya Mutuku for the Accused Persons as well as Mr Mouko