[2022] KEHC 16011 (KLR)

Republic v Mwangi & another (Criminal Case E038 of 2022) [2022] KEHC 16011 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16011 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case E038 of 2022

MM Kasango, J

December 1, 2022

Between

Republic

Prosecutor

and

Gladys Njeri Mwangi alias Chania

1st Accused

Morris Kamau Mbugua

2nd Accused

Ruling

1. Gladys Njeri Mwangi alias Chania (1st accused) and Morris Kamau Mbugua (2nd accused) are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. They both took plea to that charge on November 2, 2022 when they pleaded not guilty.

2. This ruling relates to the application by both accused for bail pending trial. The accused in support of their application submitted that they have constitutional right to bail based on provision of section 123 of the Criminal Procedure Code(CPC) and article 49(1)(h) of the Constitution. Learned counsel Mr Wandugi on behalf of the 1st accused submitted that section 123 of the CPC is fortified by article 49(1)(h) of the Constitution.

3. In seeking the release on bail of the 1st accused, Mr Wandugi submitted that the 1st accused is a Kenyan citizen, resident and domiciled in Kenya. He added that the 1st accused is a mother to several children and that the last two are young, the youngest being 15 years old. That those children need maternal love and care of the 1st accused. That the 1st accused has her residence which is well known by the police. That she has no negative antecedents which can bar her from being granted bail.

4. Mr Wandugi further submitted that the offence 1st accused faces is bailable and because there were no compelling reasons, 1st accused should be released on bail. Mr Wandugi was of the view that the investigating officer’s (IO’s) affidavit in opposition to granting bail lacked credibility and that it was based on rumours and speculation. That this court cannot be bound by fear and apprehension and suppositions. That if it were so, no one would be granted bail. In Mr Wandugi’s view the opposition raised by prosecution lacked tangible evidence which can assist one to make reasoned decision on the application for bail. That it was incorrect for the IO to depone in his affidavit that 1st accused should be denied bail for her own safety because that is tantamount to saying 1st accused was only safe while in Langata Women Prison. That the state needs to prove that 1st accused’s life is in danger if released on bail.

5. In regard to IO’s deposition that the 1st accused is a flight risk Mr Wandugi submitted that that deposition is a general statement without foundation.

6. A case that supports the submissions of 1st accused is R vs Dwight Sagaray & 4 others (2013) eKLR as follows:-“As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others.‘I agree with the holding in Panju vs Republic [1973] E.A 284, where the court in dismissing the prosecutor’s fear of interference with witnesses stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking courts to speculate.’”

7. Mr Gachau submitting on behalf of the 2nd accused stated that out of 11 paragraphs of the IO’s affidavit, only two paragraphs referred to the 2nd accused. He too submitted that the IO’s deposition were speculative. That the law requires such allegation to be supported by evidence since everyone is presumed innocent until proved otherwise. That the court in considering a bail application would need to consider whether the accused person will attend court when required to do so.

8. Prosecution opposes the bail application by both accused persons. In his submission, Mr Kelwon the prosecution counsel cited the provisions of article 157 of the Constitutionwhich he submitted placed a duty on Director of Public Prosecutions (DPP) in the administration of justice to bring evidence, facts and information to court to assist the court reach a just and fair decision. He therefore deduced that in opposing bond, it was not opposition for the sake of it. He referred to the IO’s affidavit. He stated the facts contained therein were not controverted and the deponent had not been requested to be cross-examined. The prosecution therefore relied on the contents of the affidavit.

9. In respect to the probation pre-bail reports, Mr Kelwon submitted that the court will need to balance the rights of the accused to bail and the interest of justice.

Analysis and Determination 10. I have considered the parties submissions, the IO’s affidavit and the pre-bail report.

11. I wish to begin by stating that the IO. swore an affidavit raising the prosecution’s opposition to accused being granted bail but the accused did not counter those deposition through their own affidavits. Affidavit evidence is under oath. The deposition of the IO needed to be challenged by evidence on oath. The Court of Appeal in the case Daniel Kibeth Mutai & 9 others vs Attoreny General (2019) eKLR had occasion to consider an appeal where evidence on oath was not challenged with facts on oath. This is what the Court of Appeal in that case stated:-“(34)The position before us is that the appellants averred to certain facts under oath in an affidavit. These facts were not controverted by the respondents either through an affidavit in response or through cross examination. An affidavit is sworn evidence. It occupies a higher pedestal than grounds of opposition that are basically issues of law intended to be argued. Two things flow from this. First, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted. Secondly, a question arises regarding the weight or probative value of the averred factual evidence.”

12. In my view, the fact the accused did not swear their own affidavit to challenge the IO’s affidavit, there is an assumption that the IO’s facts averred in the affidavit as factual evidence were admitted by the accused. What then did the IO depone?

13. The IO began by deponing that he was seized of the facts contained in his affidavit. In that affidavit IO gave 3 reasons which he termed as compelling reasons to deny the accused bail.

14. The first reason was that a witness in the murder trial LMK who was a girlfriend of the deceased had been threatened and subjected to intimidation before the murder of the deceased. Although in support of that statement IO relied on an OB extract that does not advance his deposition. There is no nexus seen between the OB extract and the allegation of threats to LMK. The extract only referred to the arrest of LMK on suspicion of having committed murder. The allegation of threat and intimidation of LMK therefore is unconvincing to lead the court to deny accused bail.

15. The second reason stated in IO’s affidavit on why bail should not be granted is that the 1st accused is a politician and an influential person in the society, particularly Kiambu County. That she indirectly interfered with evidence relating to this murder charge. IO deponed that as a consequence, 1st accused was likely to interfere with the witnesses in this case either directly or indirectly.

16. There is no doubt that the 1st accused is a politician. She unsuccessfully vied for a political seat in Kiambu County during the last general elections held on August 9, 2022. With one being involved in politics it goes without saying that such a person enjoys some amount of backing and influence. The IO deponed to a fact that 1st accused indirectly interfered with evidence. That deposition was not challenged by evidence under oath. It was challenged by oral submissions made by the 1st accused’s counsel. I am inclined to accept that that fact is proved by IO since it was not challenged. Consequently, I find the 1st accused can interfere with other evidences prosecution wishes to rely upon, that is, documentary material and also witnesses’ evidence.

17. The IO deponed that some of the witnesses were close family friends and there is the possibility of inducement by the 1st accused. The 1st accused did not challenge that deposition under oath.

18. Similarly, the IO deposition that 2nd accused was employed by 1st accused only days before deceased was murdered and that the terms of his said employment not being clear was not challenged. The deposition that 2nd accused could be used to interfere with evidence by 1st accused was also not challenged.

19. Additionally, the 1st accused should have challenged on oath what IO stated on oath that she was a flight risk. In the absence of such challenge, the court notes that indeed, 1st accused previously had a visa to travel to USA, she has family members in USA and there is therefore the possibility the 1st accused may abscond her trial.

20. In regard to what is compelling reason that would lead the court to deny one bail, I rely on the discussion in the case Republic vs Dkn (2021) eKLR as follows:-“6. The Court of Appeal in Michael Juma Oyamo & another v Republic [2019] eKLR adopted the definition of the phrase “compelling reasons” in the case of R v Joktan Malende And 3 others Criminal Case No 55 of 2009 where the Learned Judge held as thus: -“… 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 standards set by the Constitution.”

21. I have considered the probation report on the accused persons. The report in respect to accused is positive in regard to their family and community support; it ought to however be noted that in respect to 1st accused, the probation stated that there were hostilities towards the 1st accused in Gatundu South. This confirms what the IO stated in his affidavit.

22. I wholly agree with the submission of the accused’s counsel that the accused, like every other person have a right to liberty and to be presumed innocent until proven guilty. However, the courts when considering bail application have an obligation to balance the rights of accused with those of the victims and interest of justice. The courts ought to further ensure that if released, an accused will not likely interfere with the witnesses or evidence.

23. There is the matter of the deceased’s former farmhand who has not been traced, which has weighed heavily on this court as it considers the accused’s bail application.

24. On the whole, balancing the rights of accused and the rights of interest of justice, I find on a balance of probability, there is sufficient evidence before court to lead the court to find the accused should be denied bail pending their trial. Although accused’s counsels found fault with the IO’s deposition, the evidence presented by the state is compelling and I therefore find there are reasons to deny the accused bail. This is because of the likelihood of interference of witnesses and evidence and because of the risk of the life of the accused. There is also the nagging question of the whereabouts of the deceased’s former farmhand. The IO posed a question which he did not answer; that is, whether the former farmhand is still alive.

25. Before concluding, I wish to state that the accused’s counsels, although they protested had not been supplied with prosecution’s bundle. They did not prove that they had requested the office of DPP Kiambu to supply with the bundle and it had been declined. Their protest therefore, will have no bearing on the consideration for the bail application. Similarly, the accused’s counsels’ request to expunge one exhibit in the IO’s affidavit “PK3” has no basis because they were served with two affidavits and one of those affidavits had the exhibit.

Disposition 26. The order of this court in respect to the application for bail by both accused is that it is declined. The accused shall continue to remain in custody as their trial progresses.

RULING DATED AND DELIVERED AT KIAMBU THIS 1 ST DAY OF DECEMBER, 2022. MARY KASANGOJUDGEIn the presence ofCoram:Court Assistant : Mourice/Julia1st accused : - Gladys Njeri Mwangi alias Chania :- Present in court2nd accused : - Morris Kamau Mbugua:- Present Nairobi RemandFor 1st accused : - Gladys Njeri Mwangi alias Chania :- Mr. WandugiFor 2nd accused : - Morris Kamau Mbugua:- Mr. Wandugi HB Mr. GachauFor State :- Mr. Kelwon HB for Mr. GachariaRULING delivered virtually.MARY KASANGOJUDGE