[2022] KEHC 2482 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. 19 OF 2020

REPUBLIC..........................................................................................PROSECUTOR

-VERSUS-

NELSON MUHAGANI MUGADI........................................................... ACCUSED

RULING

1. NELSON MUHANGANI MUGADI pleaded not guilty to the offence of murder. A Ruling was delivered in this matter in respect to the accused’s application for release on bail pending his trial. That Ruling is dated 6th May, 2021. The accused’s trial commenced on 7th December, 2021 when three of the prosecutions witnesses testified. Learned counsel Mr. Francis Karanja Nganga applied for review of bond terms of the accused.

2. The bond terms granted by this Court’s Ruling on 6th May, 2021 were as follows:-

“(a) Nelson Muhagani Mugadi shall be released on bond of Kshs.500,000/= with two sureties of similar amount.

(b) The accused shall not interfere with prosecution’s witnesses.”

3. The learned counsel for the accused sought that the condition for provisions of sureties be removed. He stated that the accused has been unable to raise sureties.

4. The application for review of bond terms was opposed by Director of Public Prosecution (DPP) through the learned counsel Ms. Kathambi, Senior Principal Prosecution Counsel. DPP stated that the accused is a flight risk. That after the alleged offence was committed the accused left Kiambu County and was arrested in Western Kenya. Learned counsel Ms. Kathambi stated that the accused, if given another opportunity he will fail to attend his trial.

5. Purpose of granting bail is to ensure an accused person will attend his/her trial: See the case PETER KINYANJUI WAINAINA VS. REPUBLIC (2021) eKLR as follows:-

“The court in theMAURICE AMUGUMBI case (supra) observed that:-

‘The ultimate purpose of bail is to ensure that the accused person will attend trial. Obviously, the more severe the likely punishment for the offence charged, the more likely that an accused person may be tempted to abscond to avoid the eventuality of punishment. Therefore, in as much as the court must pay attention to the charges facing an accused person, it must be careful to give effect to the right to bail while determining what conditions to impose. If that does not happen, the terms imposed may well turn out to be effectively a denial of the right to bail.’”

6. The court is concerned that the accused is said to be a flight risk. The learned counsel for the accused did not respond to that concern.

7. In making an application for review of bond terms, the accused needed to show changed circumstances since the previous bond terms were issued. This indeed was discussed in the case REPUBLIC VS. NAOMI HECHESA SANYA & ANOTHER (2020) eKLR as follows:-

“14. This court faced with a similar application in REPUBLIC v JOSEPH KURIA IRUNGU alias JOWIE & ANOTHER [2019] eKLR has this to say: -

“14. The Applicant bears the burden on review to show on a balance of probability why the earlier order should be vacated and why it should be unjust not to vacate the order. He must show that the circumstances of the case are so altered that compelling reasons are disclosed for review of the earlier order. This position was clearly stated by Justice Muriithiin his well argued decision inREPUBLIC v DIANA SULEIMAN SAID & ANOTHER [2014] eKLR: -

‘11. The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful Applicant for bail may repeat his application if his circumstances changed in such a manner as to favor his release on bail . . .’”

8. There being no changed circumstances and because there is the likelihood of accused not attending the trial, the application for review of bond terms is declined. This case is confirmed for hearing on 9th and 10th March, 2022.

RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice

Accused: NELSON MUHAGANI MUGADI : - Present

For accused: - Mr. Karanja

For DPP: Mr. Kasyoka & Mr. Benjamin

COURT

RULINGdelivered virtually.

MARY KASANGO

JUDGE