[2022] KEHC 14783 (KLR)

Republic v Musimbi (Criminal Case E066 of 2022) [2022] KEHC 14783 (KLR) (Crim) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14783 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E066 of 2022

K Kimondo, J

November 4, 2022

Between

Republic

Prosecutor

and

Setrick Nadwa Musimbi alias Seto

Accused

Ruling

1. The accused prays for bail pending trial.

2. His learned counsel, Mr. Ogado, first made the application on October 5, 2022. The Republic opposed the application but sought for time to file a replying affidavit.

3. I directed the State to reply and serve within 7 days. However, the replying affidavit by the investigating officer, Corporal Ngetich, was filed out of time on October 13, 2022.

4. At the further hearing on November 1, 2022, learned defence counsel urged me to strike out the deposition. I asked counsel whether he required leave to reply to the impugned affidavit but he opted to conclude his arguments for grant of bail.

5. He submitted that bail is a constitutional right; and, that the accused is deemed innocent at this stage. He argued that the accused is not a flight-risk and that the averments in the replying affidavit are not reinforced by the Investigations diary. He stated that for the period the accused is alleged to have gone underground, he was housed by his mother and there is scant evidence that the police made any meaningful efforts to trace him.

6. Regarding the allegations that the accused has no mobile line in his name or that he has been communicating through a line registered to a third party, counsel argued that there is no requirement in law that every adult should subscribe to a mobile operator.

7. On the claim that the accused communicated with some witnesses on the said line, counsel argued that the accused ekes out a living as a tout and so are the said witnesses. He argued that it would be ridiculous to say that he interfered with or threatened the witnesses in the circumstances.

8. In a synopsis, learned counsel submitted that that there are no compelling reasons for denial of bail.

9. As I indicated, the Director of Public Prosecutions opposed the application. The objections are three-pronged: Firstly, that the accused went into hiding after the incident and was only arrested after a year. Secondly, that he threatened potential witnesses through calls and WhatsApp messages from the third-party mobile line. On that aspect, the Republic has applied for assistance through the Witness Protection Programme.

10. It is also averred that despite his age of 27, the accused has no subscribed mobile line and that the line above was being used in a gadget recovered from him. The deponent avers that that is why it took so long to track him down.

11. Thirdly, the State informed the court that there are still some accomplices at large and that releasing the accused at this stage may be imprudent.

12. I have already highlighted at paragraphs 5 to 8 of this ruling the retort by learned counsel for the accused to those allegations.

13. I take the following view of the matter. The accused faces the grave charge of murder. The Director of Public Prosecutions informs the High Court that on the May 17, 2021 at Eastleigh Stage along Racecourse Road, in Kamukunji Sub-County within Nairobi County jointly with others not before the court, murdered Peter Macharia Kamau.

14. Those remain allegations; and the accused is presumed innocent at this moment. Under Article 49 (1) (h) of the Constitution, as read together with section 123 A(1) of the Criminal Procedure Code, he is entitled to bail unless there be compelling circumstances.

15. Regarding the phrase, compelling reasons, I am well guided by the decision of Gikonyo J in Republic v Joktan Mayende & 3 others, High Court, Bungoma Criminal Case 55 of 2009 [2012] eKLR where the learned judge stated-But more light is shed by the Black's Law Dictionary 7th Edition. And accordingly, the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.

16. The overarching objective of bail is to ensure the accused attends trial. See Michael Juma Oyamo & another v Republic, Court of Appeal, Nairobi Criminal Appeal 113 of 2018 [2019] eKLR; Muraguri v Republic [1989] KLR 181; R v Fredrick Ole Leliman & 4 others, Nairobi High Court Criminal Case 57 of 2016 [2016] eKLR.

17. I will first deal with the application to strike out the replying affidavit by the investigating officer. Unlike civil proceedings, there are no strict timelines for filing of depositions in an application for bail. I am alive that under the Judiciary’s Guidelines for Active Case Management in Criminal Cases, there is an overriding objective to the parties to assist the court to expedite determination of criminal cases. But the guidelines as read together with Article 159 of the Constitution frown upon technical justice. They also allow for extension of time set in a direction by the court.

18. In the instant case, the delay in filing the impugned affidavit was only for a day or two. I thus decline to strike out the replying affidavit. I must add that I granted the accused opportunity to reply but his counsel opted to respond from the bar. What that means is that the averments in the replying affidavit remain uncontroverted.

19. When I juxtapose the principles for grant of bail that I set out earlier, I find further as follows. The homicide occurred on May 17, 2021. The accused was not arrested until September 26, 2022. I agree with the defence that the accused was not obligated to subscribe to a line in his name. But he does not also deny that he was using a third-party’s line as per exhibits JN3 - 5.

20. There are then the allegations that the mobile line transmitted the offensive messages in annextures JN 7 - 8 for instance. I do not have the benefit of the investigation diary at this stage and it may well turn out that the allegations are unfounded.

21. From the Information brought to the High Court charging the accused dated October 3, 2022, it is pleaded that the accused acted “jointly with others not before court”. Learned Prosecution Counsel stated that such accomplices remain at large.

22. In the upshot, there are strong and compelling reasons for denial of bail. I accordingly refuse to grant bail at this stage.

23. That said, the court must strike a delicate balance that protects the rights of the accused but at the same time ensures that the course of justice is not jeopardized. In the interests of justice, I direct that that this trial shall be fast-tracked.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF NOVEMBER 2022. KANYI KIMONDOJUDGERuling read virtually onMicrosoft Teams in the presence of-Accused.Mr. Ogado for the accused.Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.