[2017] KEHC 7693 (KLR)
The court found that, although the accused is presumed innocent until proven guilty, the specific circumstances of the case—namely, that the accused, deceased, and key prosecution witnesses are immediate family members living in the same compound—create a real and compelling risk of interference with witnesses...
Source-derived case information.
- Citation
- [2017] KEHC 7693 (KLR)
- Parties
- Applicant: Republic; Respondent: Peter Ngugi Gichoho
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Judgment Date
- 24 February 2017
- Case Number
- Criminal Case 33 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Bail application refused; accused to remain in custody until conclusion of trial.
- Judges
- DW Mbuteti
- Legal Topics
- Bail Pending Trial, Murder Charge, Witness Protection, Presumption of Innocence
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Peter Ngugi Gichoho
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused should be granted bail pending trial for the offence of murder.
- 2 Whether there exist compelling reasons to deny bail as required by Article 49(1)(h) of the Constitution.
- 3 Whether the safety and fear of prosecution witnesses constitute compelling reasons to deny bail.
Ratio Decidendi
The court found that, although the accused is presumed innocent until proven guilty, the specific circumstances of the case—namely, that the accused, deceased, and key prosecution witnesses are immediate family members living in the same compound—create a real and compelling risk of interference with witnesses through violence or threats. The court accepted the prosecution's argument that the witnesses' fear for their safety is genuine and not far-fetched, especially given the accused's alleged history of violence. These factors collectively constitute compelling reasons under Article 49(1)(h) of the Constitution to deny bail. Therefore, the accused's application for bail pending trial...
Court Disposition
Bail application refused; accused to remain in custody until conclusion of trial.
Orders
- Bail is refused.
- The accused shall remain in custody until conclusion of his trial.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL CASE NO 33 OF 2015
REPUBLIC.………….……………….…….PROSECUTOR
VERSUS
PETER NGUGI GICHOHO……………...............ACCUSED
R U L I N G
1. The accused herein, Peter Ngugi Gichoho, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged in the information dated 01/10/2015 that on 06/01/2014 at Gakuyu Village, Wanjengi Sub-location within Murang’a County he murdered one James Kiunjuri Gichoho.
2. On 01/10/2015 the Accused pleaded not guilty to the charge. His trial is scheduled to commence on 05/07/2017. In the meantime he has sought to be admitted to bail by notice of motion dated 12/11/2015. The Republic has opposed bail by a replying affidavit sworn by one IP Bernard Juma, the investigating officer of the case, and filed on 10/10/2016. He has deponed, inter alia, that the Deceased was the Accused’s brother; that an important witness for the prosecution, Suleiman Njoroge Gichoho, is also a brother of the Accused; that another witness, Esther Waruini Gichoho, is a step-mother of the Accused; that the Accused, the Deceased and the witnesses lived in the same compound; and that should the Accused be released on bail the witnesses will be in fear of their lives “since the Accused has a history of violence”
3. I have considered the submissions of the learned counsels appearing. I have also perused the file of witness statements and other documents supplied to the Accused as well as to the court by the prosecution.
4. Bail pending trial is now a constitutional right for all offences that will be denied only for compelling reason. Any conditions for such bail the court might impose must, again by constitutional edict, be reasonable. For all this see Article 49(1) (h) of the Constitution of Kenya, 2010.
5. The Deceased, Accused and one important witness of the prosecution are brothers. Another important witness is their step-mother. They all live in the same compound. The two witnesses have stated through the investigating officer, that they will be in fear for their lives should the Accused be released on bail and join them at home.
6. I have noted the circumstances in which the alleged offence was committed, and it does appear that the fear of violence on the part of the witnesses should the Accused be released on bail is not far-fetched and is in fact real. In reaching this conclusion I remind myself that the Accused has not been tried and found guilty, and must be presumed innocent at this stage. But I consider that the possibility of the Accused interfering with witnesses through either violence or threat of violence is compelling enough to warrant denying him bail.
7. In the circumstances bail is refused. The Accused shall remain in custody until conclusion of his trial. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 23RD DAY OF FEBRUARY 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 24TH DAY OF FEBRUARY 2017