[2015] KEHC 1868 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL CASE NO. 49 OF 2014

REPUBLIC...................................................................... PROSECUTOR

VERSUS

R J )

MWINYI HAMISI MASUUD ).............................................. ACCUSED

RULING

The learned state counsel, Mr. Masila on 9/9/15 indicated to court that the investigating officer was present in court but has not come with the Occurrence Book (O.B.). He also stated that they had written to the Witness Protection Agency and enclosed five (5) statements but they were yet to receive information on the risk assessment of the witnesses requiring protection. Subsequently, Mr. Masila informed court that they were not ready to proceed and requested for another hearing date in a month’s time.

This was opposed by counsel for 1st accused person.

According to Mr. Shimaka for the 1st accused person, the matter had come up for hearing three times, being 12/3/2015, 11/6/15 and 13/7/15 and now the state was introducing the issue of witness protection. As a result of this, Mr. Shimaka has urged the court to review the orders in regard to the 1st accused person being admitted to bond/bail since they had introduced new issues in the case. He also stated that the 1st accused person, despite this court having directed that the O.I.C. prison escorts him because of his mental condition, has continually been given pain-killers.

Mr. Khatib for the 2nd accused person has reiterated the submissions by Mr. Shimaka and stated that a similar application was made on 11/6/2015. He also added that they had not been supplied with copies of witnesses’ statements. He further submitted that the accused persons are entitled to a fair and speedy trial, and this can’t be the case if one year from the date of their arrest, the accused persons do not know the witnesses they are to face or the evidence they are to give.

He then opposed the application for an adjournment but went on to say that if the court was inclined to grant the same, it reviews the accused person’s bond application.

In response to the argument by the counsel for the accused persons, Mr. Masila, learned state counsel submitted that all the issues raised by the defence had been considered by Hon. Justice Muya in his ruling in regard to the application for bond delivered on 15/7/2015 at page 8, when he said;-

“… decline to grant the two accused persons bond and order that the case does proceed for trial at a later date and they remain in custody till full hearing and determination of any other appropriate order of the court.”

He also submitted that there is no reason whatsoever to review the order as there has been no change of circumstances.

He urged the court to indulge then in their prayer for an adjournment and undertook to proceed with the witnesses who are not subject to protection. He undertook to supply statements of the witnesses who are not subject to protection.

To which Mr. Shimaka stated that he has never seen where statements are protected and that this was in total breach of Article 50 of the Constitution (2010).

He felt that this application to put witnesses under protection ought to have been made before but because it was being made now, there was a confirmation of change in circumstances.

He summed up by saying that Justice Muya’s order in declining to grant bond was not binding on this court.

I carefully listened to the submissions by all counsel in the case in regard to the application by the prosecution for an adjournment.

I find that counsel for the accused persons have objected to the said application in view of the length of time the prosecution are taking in having the trial finalized because of the adjournments they are seeking. However, they appeared to concede to an adjournment being granted if the court would be inclined to review the orders in regard to the accused persons being admitted to bail.

Mr. Khatib also submitted that the prosecution had not supplied them with copies of witness statements since the inception of this case.

I have read through the court record and observed that on 15th July, 2015, Hon. Justice Muya declined to admit the accused persons on bond and in so doing he noted;

“a) That this is a very serious case with considerable security implication.

That the accused persons have been on the run and the possibility that they will attend court if granted bond is very minimal.”

In applying for an adjournment, the prosecution’s reason was that they had not received any response to their letter to the Witness Protection Agency in regard to the risk assessment of some of their witnesses. This according to Mr. Shimaka for the 1st accused person was introducing a new issue, which then changes circumstances warranting this court to review the order with regard to the 1st accused person’s bond. Mr. Khatib reiterated this submission.

In my own opinion, I find the introduction of the issue of witness protection by the prosecution not a change in circumstance as it has no bearing to the circumstance Hon. Justice Muya considered when declining to admit the accused persons on bond/bail on 15th July, 2015. This court has not been shown that the apprehension held out the security and the issue of the accused person’s likelihood to abscond has been alleged.

I therefore decline the request/application to review the order in respect of accused persons’ being admitted to bail/bond.

However, it came out from Mr. Masila’s (the learned counsel for the state) submitted that there are witnesses who are not under the witness protection programme and they would proceed with their evidence as they await the confirmation of the risk assessment by the witness protection agency.

In the circumstance, I grant the adjournment sought by the prosecution. This case be set down for hearing and the prosecution is urged to ensure that they avail the witnesses who are not under the witness protection programme to give evidence as they await for confirmation from the agency.

There also arose the issue of the prosecution not having furnished the defence with copies of witnesses’ statements. This is a requirement of the law under Article 50(2) of the Constitution (2010). I direct the prosecution to comply with this provision.

I also direct that the officer in charge, Shimo La Tewa Prison escorts the 1st accused person to Coast General Hospital for medical examination and treatment.

Ruling signed, dated and delivered this 25th day of September, 2015.

D.O. CHEPKWONY

JUDGE

In the presence of:-

The learned counsel for the accused present Mr. Shimaka and Mr. Mushelle for 1st and 2nd accused persons respectively.

Mr. Musila learned counsel for the state.

Court Assistant Mr. Kiarie.