[2023] KEHC 19166 (KLR)

Republic v Nyareru (Miscellaneous Criminal Application E044 of 2023) [2023] KEHC 19166 (KLR) (27 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19166 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Criminal Application E044 of 2023

PN Gichohi, J

June 27, 2023

Between

Republic

Applicant

and

Cyprian Karuru Nyareru

Respondent

Ruling

1. The background of this ruling is that the Respondent herein was presented before this Court on April 17, 2023 in Criminal Case No E014 of 2023 where he was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the April 9, 2023 at Pillars Sports Park Hotel in Mosocho district within Kisii County, he murdered Thomson Ondingo Ndege.

2. He pleaded “not guilty” to the charge and immediately, Mr Kaburi Advocate for the Applicant sought a pre-bail report and this was agreed upon by Mr Ochengo for the Respondent.

3. The report was duly filed where the Probation Officer Gerald Atinda found the Applicant “suitable for bond subject to the court’s discretion.” However, the Applicant through the investigating officer in this case No 79088 PC Wycliffe Imbuga filed an affidavit in this Misc Application No E044 of 2023 and which he swore on May 17, 2023 and filed on the same date. He opposed the release of the Respondent on bond.

4. While terming this case as a “murder of passion” and highting the circumstances under which the deceased was murdered, the Investigating Officer stated that the Respondent is likely to harm Pauline Moraa (the key witness in this case) as the Applicant was her ex- lover while also at the same time, she was dating the deceased herein before the deceased was murdered.

5. Further, the Investigating Officer stated that after Pauline had been placed as a prosecution witness, it has come to his knowledge that during the transportation to Court, the Respondent has issued threats to Pauline Moraa with death if she ever testifies against him before Court.

6. He further stated that Pauline Moraa has vehemently opposed the Respondent’s release on bond as she fears the Respondent is likely to harm her since he knows all the joints to find her including her work place, homestead , social joints , her children, the vehicle she drives and her relatives.

7. He stated that Gerald Atinda has failed in his report to consider the above circumstances and that the Respondent has three active criminal cases before court that is, CF 050/2021, 051 /2021 and 052/2021 and therefore not a first offender.

8. He further stated that if the Respondent is released on bond, it would mean that Pauline Moraa would have to be placed on witness protection or assigned a police officer by the State which means that she will work and live in isolation and this would have effect on her family and her children in particular. He therefore urged the Court to deny the Applicant bond.

9. Mr Kaburi however termed this affidavit an afterthought arguing that the Probation Officer had already interviewed the family of the Applicant and the victim’s family and there is no evidence of threats after the incident. He argued that in the circumstances, the Investigating Officer is misleading the Court as the witness has not even filed an affidavit. He urged the Court to give accused a conditional bond.

10. Mr Mageto for the victim termed the pre- bail report as not authentic in that it was filed on April 27, 2023 but signed on May 3, 2023; the matter having originated from Nyanchwa Police Station, the report shows that the matter herein originates from Masimba Police Station. He therefore urged the Court to expunge the pre- bail report from the Court record and to consider the issues articulated in the affidavit.

Determination 11. I have considered the application, affidavit, the report from the Probation Office and the submissions by the parties. No doubt, the pre-bail report appears to have some issues.

12. It states that the matter is from Masimba Police Station, yet this is a matter from Nyanchwa Police Station as per the Investigating Officer. It is not clear why it was signed on May 3, 2023 after being filed in Court on April 27, 2023.

13. Further , though the report does not show that the Respondent has three active cases in court, the same report shows that the “Local administration has no objection to his bond as they said they don’t have any of his criminal record to warrant denial of bond application.”

14. Of course, the three cases referred to by Investigating Officer would become a criminal record and of great importance to this Court after the concerned courts finally convict the Respondent of the charges therein. Active cases in court as against the Respondent would also be relevant if he was out on bond when he was charged in this case.

15. Though there is no denial that indeed he has such cases in court, there are no proper particulars and disclosure of the nature of the said cases so that their effect on this application can be considered.

16. The report by the Probation Officer does not contain details relating to issues that would affect the release of the Respondent on bond in the circumstances herein. The fact that there is no indication or suspicion of any danger from the Respondent in regard to the life of the widow and the family of the deceased is not the real issue here.

17. Further, it is not really an issue that the witness was worried about her image before her staff at Marani Level 4 Hospital and its vicinity, her pharmaceutical shops within Kisii town and its customers , but that the issue had been taken care of by her being on leave. That was perhaps an issue of concern to her regarding their perception of her morality vis-a- vis the reality. This cannot affect determination of the issue before this Court.

18. The main issue here is the alleged threats by the Respondent and the apprehension that he would harm the witness if released on bond while viewed against the circumstances under which the murder herein was committed. The Respondent’s constitutional right to bail is not absolute.

19. Threat to a key witness not to testify before a court of law in such circumstances as is apparent in this case amounts to interference with the witness. That is one of the compelling reasons why the accused person would be denied bond. It is not fatal that the witness has not sworn an affidavit in this case.

20. Placing a witness under witness protection is common where the witness’s safety is threatened. However , where the threats are from an accused person as in this case and there are fears that accused would actualise the threat, solution should not always be to put the witness under witness protection and then release the accused on bond. That would be to encourage anarchy and lawlessness. That approach wound also end up overburdening other agencies through costs. Further, it would cause the witness to be detached from her family and her normal life.

21. In the circumstances, the solution here is to deny the accused person bond at this stage. That denial however, goes hand in hand with accused’s legitimate expectation that the application for denial of his release on bond should not be used to punish him. He is presumed innocent until proved guilty. It is therefore critical that this case be given priority and be heard on a day-to-day basis to ensure its expeditious disposal.

DATED, SIGNED AND DELIVERED AT KISII THIS 27TH DAY OF JUNE, 2023. PATRICIA GICHOHIJUDGEIn the presence of:Mr Ochengo for the StateAccused personMr Kaburi for AccusedMr Mageto for the VictimKevin Isindu, Court Assistant