[2023] KEHC 23090 (KLR)

Republic v Mwangi (Criminal Case E014 of 2023) [2023] KEHC 23090 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23090 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case E014 of 2023

CW Githua, J

October 5, 2023

Between

Republic

Prosecutor

and

Anthony Mburu Mwangi

Accused

Ruling

1. The accused person, Antony Mburu Mwangi faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. When he was arraigned in court on July 11, 2023, he denied the charge and his learned counsel Mr. Mwangi orally applied for his admission to bond or bail pending trial.

2. The application is strongly opposed by the prosecution through oral submissions made by learned prosecution Ms Muriu relying on the affidavit sworn by the investigating officer PC Henry Mutua on July 3, 2023. The main reasons advanced by the prosecution in opposition to release of the accused on bond or bail pending trial are that the deceased was the accused’s mother and his family members including his father are opposed to his release; that if released, his life is likely to be in danger; that if released he, was likely to interfere with the prosecution witnesses since some of them are his family members including his father and that he is a flight risk considering the gravity of the offence he was facing.

3. To further buttress the claim that the accused was a flight risk, Ms Muriu relied on the pre-bail report which was filed on September 20, 2023 in which it was noted that the accused’s dwelling house was demolished by his father after he was arrested and therefore, the accused does not currently have a place of abode.

4. In support of his application, Mr. Mwangi submitted that given the relationship between the accused and the deceased, his siblings and family members were bound to oppose his admission to bond or bail but the court should not take their views seriously since the accused enjoyed the constitutional presumption of being deemed innocent until proved guilty.He urged me to find that no compelling reasons have been demonstrated in this case and invited me to allow the application.

5. Having considered the application, the depositions in the investigating officer’s affidavit and the oral submissions made in support of the application, I take the following view of the matter;- first the right to bond or bail is a constitutional right which should be enjoyed by any arrested or accused person pending a charge or trial unless there are compelling reasons to militate against enjoyment of that right. This is the import of Article 49 (1) (h) of theConstitution.

6. The wording of Article 49(1)(h) of theConstitution leaves no doubt that the right to bond or bail is not absolute but is subject to existence of compelling reasons. What amounts to compelling reasons depends on the facts and circumstances of each case. As the Court of Appeal recently observed in FarahvsRepublic(2023) KECA 241 (KLR)“…. There is no criminal case that is on all fours with another. What amounts to compelling reasons will vary from one case to another. The right to bail is a constitutional right and what the court is required to do , is to consider whether there are compelling reasons to limit this right. However, the constitutional right under Article 49(i) is not a blank cheque to be filled by every accused person. It is a right to be enjoyed and which the court should guard jealously, but where there are compelling reasons to limit the right, courts should do so without hesitation”.

7. There is no set definition for the phrase “compelling reasons” but I am guided by the decision of Gikonyo Judge in RepublicvsJokitan Mayende & 3 others (2012)eKLR in which 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 theConstitution”

8. Applying the above principles to the instant application, I find that whereas there is no evidence substantiating the prosecution claim that if released, the accused was likely to interfere with witnesses, it is not disputed that the deceased was the accused’s mother and his family members including his father who was living in the same compound with the accused are some of the prosecution witnesses, in this case. In view of the close family relationship between the accused and the prosecution witnesses, the likelihood that if released at this stage the accused may interfere with witnesses cannot be said to be farfetched.

9. Secondly, it is clear from the pre-bail report that there is palpable hostility towards the accused from his siblings and other members of his community. His father went to the extent of destroying the house he used to live in. It is obvious that his family is still bitter with the loss of their loved one and although it is indeed true that an accused person is presumed innocent until proved guilty, the bitterness and hostility members of his community have towards him as described in the pre-bail report leaves no room for doubt that if released, the accused’s safety may be in danger.

10. Like I have held previously, the life of every person including that of an accused person is sacrosanct and must be protected and safeguarded by courts at all time.In my view, the claim that if released, the accused’s life may be in danger is well founded and this together with the claim that if released, the accused was likely to interfere with witnesses are to me compelling reasons justifying denial of the accused person’s right to bond or bail pending trial.

11. For the foregoing reasons, I decline to allow the application for now but the accused may renew it in future after his family members have testified and if he secures another place of abode away from Kirigithi village.It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 5TH DAY OF OCTOBER, 2023. C. W GITHUAJUDGEIn the Presence of:The accused in personMs Muriu for the stateMr. Quinteen Court Assistant