[2016] KEHC 5459 (KLR)
The court found that there were no changed circumstances since the previous denial of bail and that the risk of interference with witnesses remained. The right to bail, while fundamental, is not absolute and can be limited where justified. The court therefore declined to grant bail to the 1st accused, with liberty...
Source-derived case information.
- Citation
- [2016] KEHC 5459 (KLR)
- Parties
- Applicant: Republic; Defendant: Salome Wanjiku Jung’u; Defendant: Tom Chege Mbithi alias Rasta
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 52 of 2014
- Procedural Posture
- Criminal Case / Ruling on Second Bail Application by 1st Accused
- Outcome
- application for bail declined
- Legal Topics
- Bail Pending Trial, Murder Charge, Witness Interference, Right to Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Salome Wanjiku Jung’u
Defendant
Tom Chege Mbithi alias Rasta
Defendant
Procedural Posture
Criminal Case / Ruling on Second Bail Application by 1st Accused
Legal Issues
- 1 Whether the 1st accused should be granted bail pending trial despite a previous denial.
- 2 Whether there are changed circumstances justifying a review of the earlier bail decision.
- 3 Whether the 1st accused is likely to interfere with witnesses if released on bail.
Ratio Decidendi
The court found that there were no changed circumstances since the previous denial of bail and that the risk of interference with witnesses remained. The right to bail, while fundamental, is not absolute and can be limited where justified. The court therefore declined to grant bail to the 1st accused, with liberty to review the order after all civilian witnesses have testified if necessary.
Court Disposition
application for bail declined
Orders
- The application for bail by the 1st accused is declined.
- The accused shall remain in custody pending trial.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 52 OF 2014
REPUBLIC………………………………………….…PROSECUTOR
VERSUS
SALOME WANJIKU JUNG’U…………………………1ST ACCUSED
TOM CHEGE MBITHI alias RASTA………….……….2ND ACCUSED
RULING
Salome Wanjiku Kung’u, 1st accused and Tom Chege Mbithi alias Rasta, 2nd accused are charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence state that on the night of 22nd/23rd June 2014 at Wabuga Village in Kikuyu Sub-County within Kiambu County jointly with another not before the court murdered George Mbithi Mwaura. Both accused have denied committing this offence.
The two accused persons moved the court in an application dated 20th March 2015 seeking to be admitted to bail pending the hearing and determination of this case. The application was canvassed before Hon. Lady Justice Lesiit who in her ruling delivered on 28th May 2015 declined to grant the orders sought citing the likelihood to interfere with witnesses as the main reason.
The 1st accused has come to this court a second time seeking to be admitted to bail pending the hearing and determination of this case. Mr. Gikandi submitted on behalf of the 1st accused. He asked the court to consider the paramount consideration that the accused will present herself in court for hearing until the case is fully determined. He submitted that the prosecution has not contested this and that there is no allegation that the accused will flee if granted bail; that if there are threats to witnesses, the 1st accused is not the one threating them because she has been in custody. Counsel submitted that 1st accused undertakes to reside away from her home if granted bail.
The application is opposed by the prosecution counsel on the grounds that the 1st accused is likely to interfere with witnesses if released on bail.
I have considered the application, the supporting affidavits and the oral submissions on the part of the 1st accused. I have also considered the replying affidavit and oral submissions by the prosecution counsel in opposition to the application and read the court file including the earlier similar application, the probation reports and the ruling delivered on 28th May 2015. I am alive to the fact that bail is a right available to the accused person in this case. I am alive to the fact that this right is however not absolute and can be limited where there is reason to so limit. I do not see any changed circumstances in respect of this second application to persuade me to rule contrary to the earlier court. I will and do hereby decline this application. This case has a hearing date in June 2016. This court is at liberty to review this order after all the civilian witnesses, especially family members, have testified if there will be need to do so. The accused shall remain in custody in the meantime.
Dated, signed and delivered this 27th day of April 2016.
S. N. MUTUKU
JUDGE