[2014] KEHC 6136 (KLR)
The court found that while the State's concerns regarding possible intimidation of witnesses were genuine, these could be addressed by imposing strict bail conditions. The applicants' right to bail under the Constitution could not be overridden solely by speculative fears, especially as the applicants had undertaken...
Source-derived case information.
- Citation
- [2014] KEHC 6136 (KLR)
- Parties
- Applicant: Muteti Sammy Ndunda; Applicant: John Wafula Nyukuri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 48 of 2012
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail granted with conditions
- Judges
- CC Kipkorir
- Legal Topics
- Bail Pending Trial, Murder Charge, Witness Interference, Flight Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muteti Sammy Ndunda
Applicant
John Wafula Nyukuri
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial under the Constitution.
- 2 Whether there are compelling reasons to deny bail, specifically the risk of interference with prosecution witnesses.
Ratio Decidendi
The court found that while the State's concerns regarding possible intimidation of witnesses were genuine, these could be addressed by imposing strict bail conditions. The applicants' right to bail under the Constitution could not be overridden solely by speculative fears, especially as the applicants had undertaken not to interfere with witnesses and were not considered flight risks. The court was satisfied that the applicants' continued detention was not justified in the absence of other compelling reasons, and that appropriate conditions could mitigate the risk of interference with witnesses.
Court Disposition
bail granted with conditions
Orders
- Each applicant to pay cash bail of KES 1,000,000 or execute a bond of KES 1,000,000 with two sureties of like amount.
- Applicants to provide evidence of their expected permanent place of abode and residential address, excluding their former flats at Gateway Area.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 48 OF 2012
REPUBLIC ………………....……………………...RESPONDENT
VERSUS
MUTETI SAMMY NDUNDA…………….....1ST APPLICANT
JOHN WAFULA NYUKURI ………………2ND APPLICANT
RULING
Muteti Sammy Ndunda and John Wafula Nyukuri are facing trial for murder. The particulars of the offence are that on 10th June 2012 at about 8. 30p.m. at Mathare Gateway Area within Huruma Area of Starehe Division, Nairobi murdered an unknown african male adult. They took plea on 9th July 2012 and denied the charge and were remanded in custody.
The accused have now applied for bail pending trial. The application has been contested by the State for the reason that the applicants were likely to interfere with prosecution witnesses. PC Ayub Lwamba has sworn a Replying Affidavit stating that the accused and the civilian prosecution witnesses reside in the same locality and that there is a high possibility of the accused intimidating or inflicting fear on the witnesses if released. This averment was expounded by Ms Mwaniki the prosecuting counsel in her oral submission before court.
In contesting the State’s averments Mr. Swaka for the accused submitted that the applicants had a right to bail under the Constitution and that, as per their respective supporting affidavits, they have undertaken not to interfere with prosecution witnesses; and, to attend court whenever required.
I have carefully considered the rival affidavits and submissions. I take the view that the State’s fear on the likelihood of the witnesses being or feeling intimidated is real. It is not disputed that prior to being remanded, the applicants and the civilian prosecution witnesses resided in the same block of flats in Huruma Gateway area. Considering that the 1st applicant is an employee of the Kenya Defence Forces, it is not farfetched for the civilian witnesses to be fearful if they were to continue residing together in the same flats.
Other than this fear, which can be cured by the conditions to be imposed by the court, I see no other compelling reason to deny the applicants bail. Iam satisfied on the basis of the averments they have made and demonstrated in their supporting affidavits that they are neither a flight risk nor likely to abscond trial.
I allow their applications on the following conditions:-
Each applicant to pay cash bail of One Million Shillings (Kshs.1Million) or execute a bond of KShs.1Million with 2 sureties of like amount.
Give evidence of their expected permanent place of abode and residential address which shall exclude their former flats at Gateway Area.
Shall not contact directly or indirectly or in any manner whatsoever interfere with prosecution witnesses.
Attend the Criminal Investigation Office whenever required.
Attend monthly mention (before the Deputy Registrar). The first such mention shall be on 22nd April, 2014.
Ruling delivered, dated and signed at Nairobi this 18thday of March, 2014
R. LAGAT - KORIR
JUDGE