[2022] KEHC 11350 (KLR)

Republic v Njeru & 3 others (Criminal Case E002 of 2022) [2022] KEHC 11350 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11350 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case E002 of 2022

LW Gitari, J

July 19, 2022

Between

Republic

Prosecution

and

Hudson Murithi Njeru

1st Accused

Eric Kinyua Ireri

2nd Accused

Doreen Kawira Mutegi

3rd Accused

Mercy Muthoni Mutegi

4th Accused

Ruling

1. The accused persons herein are facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. Presently before this court is the application by the 3rd accused person to be released on bond terms pending trial. She is a daughter of the deceased victim.

3. The application is premised on the ground that the 3rd accused requires urgent medical attention as she was scheduled to go for a remedial surgery at the time of her arrest. The medical report by Dr. J.A. Haji of Ena Health Centre that is dated 10th February 2022 was submitted in support of the application.

4. The applicant also relied on the probation officer’s report on record.

5. Further, it was the submission of the applicant, through her counsel, that the circumstances surrounding her present application are similar to those of the 4th accused who was released on bail terms. The applicant thus urged this court to order that 3rd accused be released on similar terms as those of the 4th accused.

6. The medical report of Dr. Haji shows that the applicant was scheduled for surgery on 4th February 2022.

7. In response, the prosecution counsel noted that the issue of interference with key witnesses had been raised against the applicant from the probation officer’s report on record. Further, it was the prosecution counsel’s case that the security of the applicant on the ground was at risk. However, it was submitted by the prosecution counsel that the State was not opposed to the application in view of the applicant’s health conditions.

8. The right of an arrested person to be admitted to bail or bond on reasonable terms pending the conclusion of a trial is a constitutional right that is guaranteed under the provisions of Article49 (1) (h)of the Constitution of Kenya 2010. It provides:“An arrested person has the right -(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

9. The offence of murder that the applicant faces is a bailable offence. Thus, the applicant will not be denied bail unless there are compelling grounds for denial of the same.

10. The Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 identify the likelihood of the accused interfering with witnesses or evidence as a compelling reason for denial of bail as follows:“The following procedures should apply to the bail hearing:(a)The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:(a)That the accused person is likely to fail to attend court proceedings; or(b)That the accused person is likely to commit, or abet the commission of, a serious offence; or(c)That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or(d)That the accused person is likely to endanger the safety of victims, individuals or the public; or(e)That the accused person is likely to interfere with witnesses or evidence; or(f)That the accused person is likely to endanger national security; or(g)That it is in the public interest to detain the accused person in custody.”

11. In the persuasive case of K K K v Republic [2017] eKLR, the court expressed itself as hereunder:“In considering the question of bail in this matter, the court must balance the right of the accused pursuant to presumption of innocence to be released on bail pending his trial against the public interest in prevention of crime and access to justice by the victims of crime by successful prosecution of offences, which would no doubt be adversely affected by interference with witnesses and evidence relied on by the Prosecution to prove its case. The key is in adopting a path that ensures prosecution of the offences in a manner that is least restrictive of enjoyment of the accused’s right to bail. Where an expedited hearing is possible, the same should be ordered; where the witness protection measures guarantees no interference of the complainant or other witnesses by the accused, he may be released on bail as with where the evidence may be secured; and where the witnesses are prone to interference by the accused or other persons for his benefit, the testimony of such witnesses should be taken before the accused is released on bail.” [Emphasis added]

12. In this matter the court must balance the right of the accused to bail which is based on the right to be presumed innocent until found guilty by a competent court and those of the victims of crime. This must be considered in line with interest of justice for the accused and those of the victims as well as the public interest in discouraging crimes and their successful prosecution where they arise. Under Article 159 of the Constitution, the courts are given the mandate to ensure that justice is done to all irrespective of status. See Article 159 (1) (2) (a). The court therefore considers those options which will ensure the successful prosecution of the criminal offences while ensuring that the offender gets the right to bail pending trial. This can be by taking the evidence of the witnesses who are likely to be threatened or interfered with on priority basis to secure their evidence. Section 123 A (1) &2 of the Criminal Procedure Codegives the exceptions to the right to bail.“123A. (1) Subject to Article 49(1) (h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumtances and in particular- (a) the nature or seriousness of the offence; (b) the character, antecedents, associations and community ties.(c)the defendant’s record in respect of the fulfillment of obligations under previous grants of bail; and (d) the strength of the evidence of his having committed the office. (2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person- (a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody; (b) should be kept in custody for his own protection.”

13. This court called for pre-bail report. The report was filed in court by the probation officer on 21/2/2022. The report is negative and in my view it is not in the interests of justice to release the applicant on bail. Of concern is that her security cannot be guaranteed and there are very likely chances of her interfering with the witnesses. The right to bail for an accused person will be denied if there be compelling reasons not to grant bail. It has variously been held by this court that what amounts to a compelling reason will largely depend on the circumstances of each case. The compelling reason must be one which is convincing and satisfies the court beyond doubt that the accused ought to be denied bail. Some of the compelling reasons include allegations of likelihood of interference with witnesses, that accused is likely to abscord and fail to turn up for his trial, that accused has no fixed abode and the safety and or security of the accused if released on bail. This is to mention but a few as I have stated above that each case has its own individual circumstances.

14. In this case, the pre-bail report being a social inquiry on the ground is critical considering that the victim of the crime herein is the accused person’s father and those interviewed are very close relatives of the accused. They all gave negative reports based on likelihood of interference with witnesses and the safety of the accused if released. These are no doubt compelling reasons which this court cannot overlook.

15. I am minded that the State did not oppose the application since the accused has a medical condition that requires an operation. With respect, the condition is not life threatening. The probation officer’s report states that she was due for the operation on a deformity on her hand after a previous one failed. I have looked at the document dated 10/2/2022 and noted that the said surgery is not urgent. The note itself is doubtiful as the date is 10/2/2022 and says she is due for surgery on 4/2/2022. The surgery was to take place even before the said note was issued. It is not a credible document and must have been made with a sole purpose to mislead the court. If indeed she requires such surgery she can be escorted to hospital for that purpose. The document is doubtful. The probation report is not ordered in vain. Though not binding on the court, it nevertheless guides the court when determining an application of this nature. The report is negative. Furthermore the safety of the accused cannot be guaranteed. Even her mother who is her co-accused confirms this fact. The court has a duty to ensure that the safety of the applicant is guaranteed so that she can attend her trial.

I find that having considered all these factors, I find that there are compelling reasons for this court to deny the accused bail.In the case of Mahadi Swaleh Mahadi- v- Republic 2014 eKLR while the court was dealing with issue of protection of an accused under Section 123A(2) (b) of the Criminal Procedure Code, it denied the accused person bail on the ground that his safety could not be guaranteed. In this case the compelling reason was the safety and the protection of accused. In this case the probation officer’s report has stated that the safety of the accused while out on bail cannot be guaranteed, a fact confirmed by her own mother. This and the allegation of interference with witnesses are compelling reasons. For these reasons, I decline to grant the accused bail.DATED, SIGNED AND DELIVERED AT CHUKA THIS 19TH DAY OF JULY 2022,L.W. GITARIJUDGE19/7/2022The ruling has been read out in open court.L.W. GITARIJUDGE