[2023] KEHC 26319 (KLR)

Republic v Nyabuti & another (Criminal Case E036 of 2023) [2023] KEHC 26319 (KLR) (Crim) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26319 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E036 of 2023

DR Kavedza, J

December 8, 2023

Between

Republic

Respondent

and

Faith Nyabuti

1st Accused

Erick Ng’ang’a Ndung’u alias Ngash

2nd Accused

Ruling

1. The accused persons are jointly charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya. The Particulars of offence are the accused persons on 14th April 2023 at Obama Area in Kayole in Njiru Sub-County within Nairobi County, jointly murdered Richard Ondieki Akombe alias “Baba Moraa”.

2. The accused persons took plea on 21/6/2023 and denied the charges following which they promptly applied to be admitted to reasonable bail terms pending trial.

3. Cpl Sabian Odongo (No 92262) the investigating officer has sworn an affidavit dated 19th June 2023 in opposition to the application for bail/ bond. He avers that the 1st accused and the deceased were living as husband and wife prior to his demise and that the 2nd accused was their close neighbour. Further, that the deceased’s decapitated head and arms were recovered inside a sack dumped at a sewer line at Kayole Area One, a day after the deceased’s death. Later, on 18th April 2023, the deceased’s legs were recovered at Korogocho area at Tumaini Bridge at the riverbanks of Nairobi River. The deceased’s torso and palms are yet to be recovered.

4. He maintains that the accused persons are likely to interfere with prosecution witnesses who are their neighbours, being the care taker and the land lady since they are well known to them. Additionally, that the member of public around Obama area are still emotive about the incident considering the circumstances under which the heinous murder was committed. He further contends that the houses where the accused persons resided at the time of the offence were broken into by irate members of the public who vandalized their household items and threw them outside. He therefore maintains that the accused persons ought not to be released on bail/bond for their own protection and also since they do not have a known place of abode. Lastly, he avers that the accused persons are flight risks and urges the court not to release them on bail/bond.

5. The accused persons filed their respective replying affidavits. In summary, they averred that their right to bail is absolute unless there are compelling reasons. The accused persons relied on Article 49(1)(h) and 50 of the Constitution in support of their averments. It was further contended that the Investigating Officer in his Affidavit has not demonstrated any compelling reason to warrant them being denied bond/bail. They urged to be presumed innocent until proven otherwise and prayed to be released on reasonable bail terms.

6. To enable the court to determine the issue of bond, the court called for a pre-bail report in respect of each accused person.

7. As regards to the 1st accused person’s report dated 29/11/2023, it was indicated that her family pleads for her release on bail/bond. Her uncle, Mr Matoke, indicated that he is ready to secure her release using a title deed to his land in Kisii town or the log book to his car. With respect to the 2nd accused, it was reported that he was married to Monica since 2006 but separated three years ago, having been blessed with two children who live with their paternal grandparents in Nakuru.

8. The victim’s family however opposed the accused person’s application for bail/bond. They indicated that they have not healed from the loss of the deceased having buried only his body parts. Additionally, they are apprehensive that if the accused persons are released on bond, they may flee the jurisdiction of the court. As to the 2nd accused, the victims emphasized that he is a flight risk having surrendered to the police only after being convinced by the 1st accused to return to Nairobi from Nakuru, where he had fled to after the incident. The community indicated that they are still enraged about the incident and are likely to retaliate against the accused persons if they are released on bail/bond.

Issues for determination 9. I have considered the parties’ affidavits and the constitutional provisions cited. From the foregoing, the main issue for consideration is whether the reasons advanced by the respondent are compelling enough to deny the accused persons their respective right to bail.

Analysis and determination 10. Although Bail and bond is a constitutional right of an accused person under Article 49(1)(h) of the Constitution, there are circumstances under which an accused person may be denied bail if the prosecutor is able to demonstrate compelling reasons to warrant the denial.

11. In the case of RepublicvDanson Mgunya &another [2010] eKLR, which is a locus classicus on matters of bail/ bond, the issue was exhaustively addressed. The findings of the learned Judge are replicated in the Bail and Bond Policy Guidelines. The learned Judge stated:“…When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others, the following: -(i)The gravity of the punishment in the event of conviction(ii)The previous criminal record of the accused, if any(iii)The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him……The said court stated that the criteria was not exhaustive.“The main function of bail is to ensure the presence of the accused at the trial. Accordingly, this criteria is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above.”

12. The Judiciary BailandBond Policy Guidelines under paragraph 4. 9 has also provided the factors that ought to be considered by courts in bail and bond applications, inter alia:i.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.ii.The likelihood of interfering with witnesses.iii.The accused person is a flight risk.iv.Whether the accused person is gainfully employed.

13. I shall first interrogate the element of public order, peace and security of the accused persons. I have considered the affidavit of the investigating officer in which he avers how the heinous murder was perpetrated. He maintains that the deceased body was dismembered and body parts isolated and dumped at different areas in Nairobi. For instance, the deceased decapitated head and arms were recovered in a sack at Kayole One area whereas, his legs were recovered at Korogocho area. To date, the torso and palms of the deceased are yet to be recovered. Indeed, the deceased suffered a painful death. The investigating officer has further deposed that members of the public around Obama area are still emotive about the incident and are likely to attack the accused persons if they are released on bail/bond. Additionally, that immediately after the arrest of the accused persons, irate members broke into their houses and vandalized their household items. Moreover, the victim’s family are still traumatized about the incident and are yet to unearth the motive behind the deceased’s murder. Given this background, it is my considered view that the release of the accused persons would trigger further mayhem and may even cost them their lives.

14. Secondly, the investigating officer in his affidavit has averred that the accused persons are likely to interfere with key witnesses; the neighbour, caretaker and the land lady who are well known to them. He further stated that the deceased and the 1st accused were living together as husband and wife, and were blessed with two (2) children. Further, that the 2nd accused was their neighbour who lived directly opposite their plot and thus, the accused persons are well known by the said key prosecution witnesses who are yet to testify against them. In as much as the veracity of the said averments is yet to be tested during trial, I find that in the circumstances, the said neighbours who are key witnesses may be scared stiffly by the presence of the accused persons among them. It therefore follows that the likelihood of interference of witnesses, directly or indirectly, is not far-fetched.

15. In that regard, I associate myself with the sentiments of Lesiit J (as she then was), who when confronted with a similar issue in R. v Fredrick Ole Leliman & 4 others, Nairobi Criminal Case No 57 of 2016 (2016) eKLR , held that:“Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that accused may interfere with the evidence; or may endanger and individual or individuals or the public at large; likelihood the accused may commit other offences…..”

16. Thirdly, the prosecution is apprehensive that the accused persons are flight risk and if released on bail/ bond, they are unlikely to turn up for trial. As regards the 1st accused person, it is uncontroverted that she has no fixed place of abode within Nairobi. Notwithstanding that her parents are willing to accommodate her in their rural home, the report reveals that it is the same locality as that of the deceased and that she is likely to face retaliatory attacks from the public if she resides in the proposed area. In the circumstance, I find that indeed the 1st accused has no fixed place of abode and it is for that reason that I am persuaded that she is a flight risk.

17. As regards the 2nd accused, the pre-bail report indicates that he fled to Nakuru after the incident and only returned to Nairobi to record a statement with the police after being convinced by his co-accused. I am persuaded that, given the circumstances under which the 2nd accused was arrested, it is more probable than not that he intended to flee from the jurisdiction of this court. It is also indubitable that the 2nd accused is not gainfully employed and has no fixed abode. Despite the indication that he has a brother who is willing to be the contact person during his trial, no details of any arrangements have been furnished so as to give the court a comfort of measure that he will be available for his trial.

18. From the foregoing, this Court finds that there are compelling reasons to deny the accused persons bail/ bond. The upshot is that the application is temporarily disallowed until the tension cools down and primary witnesses have testified.

19. It is so ordered.

RULING DATED AND DELIVERED THIS 8TH DAY OF DECEMBER 2023. D. KAVEDZAJUDGEIn the presence of:Mr. Kiragu for the StateMr. Kandege 1st AccusedMose for 2nd AccusedAppellant PresentNaomi/Nelson C/A