[2024] KEHC 10816 (KLR)
The court found that, although the right to bail is constitutionally guaranteed, it is not absolute and may be limited where compelling reasons exist. The pre-bail report established that the local community and the victim's family are both fearful and angry, creating a credible threat to the accused's safety if...
Source-derived case information.
- Citation
- [2024] KEHC 10816 (KLR)
- Parties
- Applicant: Republic; Respondent: Gabriel Wagura Mwihungi alias Gabi
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E001 of 2023
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- bail application declined
- Judges
- CM Kariuki
- Legal Topics
- Bail and Bond, Compelling Reasons, Witness Interference, Community Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gabriel Wagura Mwihungi alias Gabi
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the accused should be granted bail pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny bail as provided under the Constitution and relevant statutes.
Ratio Decidendi
The court found that, although the right to bail is constitutionally guaranteed, it is not absolute and may be limited where compelling reasons exist. The pre-bail report established that the local community and the victim's family are both fearful and angry, creating a credible threat to the accused's safety if released. There is also a risk of interference with witnesses and no concrete assurance that the accused would not abscond. The defense's proposal to relocate the accused was not substantiated with evidence or affidavits. Therefore, the court held that the current circumstances do not favor the grant of bail, and the application is declined until witnesses testify and there is a...
Court Disposition
bail application declined
Orders
- The application for bail/bond is declined at this stage.
- The verdict on granting bond is deferred until the witnesses who are afraid of testifying if the accused is released have testified and until there is a guarantee of change of circumstances, to be confirmed by affidavits from the investigating officer and a relative of the accused.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v Mwihungi (Criminal Case E001 of 2023) [2024] KEHC 10816 (KLR) (Crim) (16 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10816 (KLR)
Republic of Kenya
In the High Court at Nyandarua
Criminal
Criminal Case E001 of 2023
CM Kariuki, J
September 16, 2024
Between
Republic
Prosecutor
and
Gabriel Wagura Mwihungi alias Gabi
Accused
Ruling
1. The Accused is charged with the Offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 20th September 2023 at Kwa Ngara within Nakuru West Sub County within Nakuru County Murdered Eunice Wambui Mwangi.
2. He pleaded not guilty, and his Advocate applied for his release on bail/bond. The Prosecution opposed the application. The court ordered the Pre-bail Report (PBR) and Investigation Officer (I.O) affidavit on the circumstances of the accused and the victim to be filed.
3. The report (PBR) was filed, but the investigating officer did not file his affidavit in court. The court gave both sides a chance to argue about the content of the report (PBR) filed. The defense argued that the primary concern is the local community from which the accused and victim hail, the accused family, and the accused family are ready to re-allocate the accused. There is a threat of the accused being lynched if he happens to be spotted in the said locality.
4. However, the Prosecution submitted that there are compelling reasons to deny the bond as covered by the filed report (PBR). I have perused the PBR.
5. The report's findings and conclusion are that the victim's family and the local community are very fearful of the accused being released on bond. His accused act is said to have generated intense anger in equal measure. That there is a threat to lynch him and also fear of him interfering with the witnesses. The report concludes that, at the moment, the accused is not suitable for release on bond.
6. The court, considering both sides' submissions and the PBR report, finds that the grant of bond/bail at the moment is not conducive. This is because, although bond/bail is a constitutional right, that same right is limited where there are compelling reasons/grounds to deny the bail/bond. Among such grounds is the disclosure that the accused life is not guaranteed as he may be lynched as the local community is both angry and fearful of the accused.
7. I gather also that there is no guarantee that the accused will not interfere with witnesses. Further, there is no guarantee that the accused will not abscond. Further, though it was submitted that the accused family is willing to relocate him to another place, this was a mere submission with no factual proposal, probably a relative affidavit specifying the alternative place plus a guarantee of the accused availability for trial.
8. In the premise, the court will differ the verdict on granting bond until the witnesses who are afraid of testifying if the accused is released on bond/bail testify and until there is a guarantee of the change of circumstances on the ground to be confirmed by the Investigating Officer affidavit and accused relative affidavit.
9. For now, the application is declined.
RULING DATED, SIGNED, AND DELIVERED AT NYANDARUA THIS 16TH DAY OF SEPTEMBER 2024. ....................................CHARLES KARIUKIJUDGE