[2017] KEHC 9695 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL DIVISION

CRIMINAL CASE NO. 81 OF 2016

REPUBLIC........................................................................RESPONDENT

VERSUS

PATRICK KIGURE LUNYWENYWE alias POKOT......1ST ACCUSED

JAMES NDUNGU WANDUNDU....................................2ND ACCUSED

RULING

1. The Accused PATRICK KIGURE LUNYWENYWE alias POKOT and JAMES NDUNGU WANDUNDU are charged with two counts of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the night of 26th and 27th November, 2016 along River Road within Nairobi County jointly with others not before court murdered ERICK MUSYOKA MUTUA and JEREMIAH MUCHIRI.

2. They pleaded not guilty and on 22/6/2017 the 1st accused filed an application to be granted bail pending the hearing and in support thereof swore an affidavit in which it was deponed that the same believed in his innocence and was ready to stand trial to prove the same and shall not skip bail or run from the jurisdiction of the court. It was deponed further that the same was willing to comply with all the requirements demanded by the court. It was stated that the trial of the case was likely to take a long time and therefore his continued absence from his family since his arrest in November, 2016 had been deeply prejudicial and troubling to them especially his two children who solely relied upon him as the breadwinner given that his wife is jobless and without a permanent place of abode following arson attack on their Dandora house.

3. In reply to the said application the prosecution on 24th October, 2017 filed a replying affidavit sworn by RICHARD ONGERA of DCI Kamukunji in which it was deponed that the applicant did not qualify to be admitted to bail because the prosecution had strong and irreputable evidence that pointed to their guilt. It was deponed further that the accused persons were charged with a very serious offence and temptation to abscond from the jurisdiction of the honourable court was red if they were released on bond. It was stated further that some of the prosecution witnesses were being threatened and assaulted by the relatives of the accused persons which had been reported to Dandora police station vide OB9/25/6/17 and 16/22/08/17 respectively and following the assault the prosecution witness sustained injuries and was issued with a P3 form.

4. The second accused person made oral application in court in which he submitted that the prosecution did not prove to court that the people allegedly intimidated were witnesses in the case and that the accused person had a fixed abode in Muranga without relatives in Dandora where the accused intended to go to should he be released on bail. On behalf of the 2nd accused it was submitted that the constitutional right to bail under Article 49(1)(h) is pegged on Article 50(2) (a) which provide for a right to a fair trial which includes a right to be presumed innocent until the contrary is proved.

5. Bail is now a constitutional right of every accused person under Article 49(1)(h) which can only be denied where there are compelling reasons advanced by the prosecution on a balance of probability. In the case of REPUBLIC v DANSON NGUNYA & Another High Court of Kenya at Mombasa Criminal Case No. 26 of 2008 Justice Mohammed K. Ibrahim (as he then was) had this to say:-

“In our constitution it is stated expressly, positively and unequivocally that an arrested person had the right to be released on bond or bail on the reasonable conditions pending a charge or trial. This means an accused person must be released on bail or bond on reasonable condition. The only exception or feather to this right is that there must be “compelling reasons not to be released”. The court must therefore exercise its discretion with this in mind – “Existence of compelling reasons.”

I do hold that if the prosecution objects to the release of the accused from detention during the pendency of a trial then, at the first instance the burden should be on the prosecution and not on the accused person to prove or at least demonstrate the existence of the compelling reasons.”

6. In this matter the prosecution through the replying affidavit and submissions before the court stated that one witness Eston Muriithi had been a subject of assault from the relatives or agent of the accused who threatened him on phone to release the two accused persons which matter was allegedly under investigation and there were likely charges to be preferred. It must be pointed out that it is alleged that the said witness was assaulted by persons known to him but the names of the said persons were never disclosed by the prosecution. The prosecution has further not disclosed any steps it has taken to protect the said witness if any and neither has it been indicated whether the said Eston Mureithi is an intended prosecution witness noting that the State has not provided the accused persons with witness statement so it cannot be said that the applicants are aware of the intended prosecution witnesses.

7. In compliance with Bail and Bond Policy Guidelines the court ordered for pre-bail report in which the probation officer stated that the home environment was not conducive for the release of the accused persons as they are at risk of being lynched by members of the public who still harbor bitterness and that some of the eye witnesses were already being threatened.

8. Whereas the issues raised can amount to compelling reasons, this court taken the view and hold that the prosecution is under duty to prove the allegation on a balance of probability to enable the court deny the accused persons their constitutional right to bond. It is noted that the evidence tendered by the prosecution are merely allegations and therefore find and hold that the prosecution has failed to provide compelling reasons to enable the court deny the accused persons their constitutional right to bail.

9. In coming to this conclusion that the prosecution has failed to prove compelling reasons to enable the court deny the applicant their constitutional right to bond, I find persuasive support in the decision by Githua J in JOB KENYANYA MUSONI v REPUBLIC HIGH COURT AT NAIROBI CRIMINAL APPLICATION NO. 399 OF 2012 wherein the learned Judge defined what constitutes compelling reasons and proceeded to state as follows:-

“Any person accused of having committed any criminal offence is entitled to be admitted to bail on reasonable conditions subject only to the existence of compelling reasons. It is trite law that party alleging the existence of certain facts had the burden of proving that such facts exist. The law is that he who alleges must prove. Whereas in the present case the prosecution is opposed to the release of an accused person on bail claiming that there are compelling reasons to justify denial of bail. It is the duty of the prosecution to prove on a balance of probabilities that such compelling reasons do in fact exist to warrant the exercise of the court’s discretion against an accused person by denying him his constitutional right to bail. The burden to prove the existence of compelling reasons rest on the prosecution and not on the accused person.”

10. Having come to the above conclusion the next issue to be determined is as to what constitute reasonable bond terms:- it must be noted that the applicant herein are charged with the offence of murder wherein the only sentence available upon conviction is death and therefore the temptation to abscond should they feel that the case might not go in their favour is very high and this must be taken into account while setting up bond terms so as not to make it easy for the applicants to abscond.

11. I would therefore set bond terms as follows:-

a)Each of the accused persons to be released on bond of Kshs.1,000,000 with one surety of similar amount.

b)In the alternative a bond of Kshs.500,000/ - with two sureties of similar amount.

c)During the period of their trial the accused persons shall not make any contact with the intended prosecution witnesses in whatsoever manner either by themselves or through agents.

d)The accused persons shall report to the investigating officer in this case once after every sixty (60) days with the first such report being immediately upon release and thereafter at dates to be set by the said investigating officer.

DATED, SIGNED and DELIVERED at Nairobi this 5th day of December, 2017

………………

J. WAKIAGA

JUDGE

In the presence of:-

Ms Wegulu for the state

Ms Wandugu for Mrs. Mburu and Olandi for the accused

Accused present

Court clerk Tabitha