[2022] KEHC 1635 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT VOI

CRIMINAL CASE NO 5 OF 2018

REPUBLIC

VERSUS

NJULU MWAKIO NJULU.......................1ST ACCUSED

ARNOLD MWANGACHE.......................2ND ACCUSED

GIDEON MENZA.....................................3RD ACCUSED

DELIUS MCHARO...................................4TH ACCUSED

BENARD ROVAL MAIGHACHO..........5TH ACCUSED

RULING NO. 2

1. The accused persons have for the third time applied to be released on bail or bond pending trial. The first two applications were dismissed due to the risk of them interfering with prosecution witnesses. After the last civilian witness testified on 8th March, 2022, Mr. Mosioma for the 1st to 4th accused persons and Mrs. Isika for the 5th accused person, applied for their clients to be released on bail or bond pending the hearing of the remaining part of their trial.

2. The Prosecution did not oppose the application made by the accused persons through their Counsel. In determining the oral application, this Court has to bear in mind the applicable provisions under the Constitution and the Criminal Procedure Code when it comes to the issue of bail or bond pending trial.

3. Article 49(1) (h) of the Constitution of Kenya provides that an accused person has the right to be released on bail or bond on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released.

4. Section 123A(1) of the Criminal Procedure Code gives the conditions that a Trial Court should put into consideration in an application for bail or bond pending trial. The said Section must however be read with Section 123 of the Criminal Procedure Code. Section 123A(1) of the said Code provides as follows -

“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 circumstances and in particular -

a. The nature and seriousness of the offence;

b. The character, antecedents, association and community ties of the accused person;

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 having committed the offence.”

5. The Court of Appeal in the case of Michael Juma Oyamo & another v Republic[2019] eKLR, considered what constitutes compelling reasons that can lead to a Court to deny an accused person bail or bond pending trial and pronounced itself thus-

“Article 49 (1) (h) of the constitution states that an arrested person has the right “to be released on bond or bail on reasonable conditions, pending a charge or trial unless there are compelling reasons”

It is therefore clear that such constitutional right can only be limited if the Prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person ……….what amount to compelling reasons as defined by the High Court in Republicv Joktan Malende and 3 othersCriminal Case No 55 of 2009 as follows:

“……..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.”(emphasis added).

6. This Court has considered the above decision and the applicable provisions of the law. Initially, there were cogent reasons for not releasing the accused persons on bail or bond as there was a real likelihood of them intimidating, threatening and interfering with prosecution witnesses. All the civilian witnesses have however testified by now and the only witness who is yet to be called is an expert witness, being the Doctor who performed the postmortem on the deceased’s body. I bear in mind that the accused persons have been in prison remand since the year 2018, when they were arrested and charged in Court. In the absence of compelling reasons, I see no reason why the accused persons should not be accorded the benefit of being released on bond.

7. In the said circumstances, I make the following orders-

i. That each of the accused persons may be released on bond pending trial upon execution of bond in the sum of Kshs 500,000/= with sureties of a similar amount. For the avoidance of doubt, each accused person must avail a surety in the sum of Kshs 500,000/=;

ii. The accused persons are cautioned against threatening or attacking the witnesses who testified against them in this case. If they threaten and/or attack any of the said witnesses, the bonds of the accused persons who will have defied the said order shall be cancelled; and

iii. All the accused persons shall attend court without fail when required to do so either for mention or hearing of this case Failure to attend court without having been excused by the court will lead to cancellation of the bond of the accused person who will have acted contrary to this order.

DELIVERED, SIGNED AND DATED IN OPEN COURT AT VOI ON THIS 11TH DAY OF MARCH, 2022

NJOKI MWANGI

JUDGE

In the presence of-

All the accused persons

Mr. Mosioma for the 1st to 4th accused persons and holding brief for Mrs. Isika for the 5th accused person.

Mr. Chirchir for DPP