[2014] KEHC 7212 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL CASE NO. 62 OF 2008

REPUBLIC ….............................................................................APPELLANT

VERSUS

SERAH WAKARIMA KANIARU ….................................................ACCUSED

RULING

HISTORY

The applicant was charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal code the particulars of which were that on diverse dates between 28th October, 2008 and 1st day of November, 2008 jointly with others not before the court murdered JOSEPH GITHUKA KIMWATU.

On 24. 11. 2008 she pleaded not guilty to the charges and was remanded in custody pending trial as was then the law.

On 10. 2.2009 the matter appeared before Justice M.S.A. Makhandia as he then was when the same was adjourned upon the application by the state and on 5. 3.09 the matter was listed before lady Justice M. Kasango when it was taken out since it could not be reached.

On 21. 10. 09 the trial commenced before Justice M.S.A. Makhandia who heard three witnesses before he was transferred to the High Court of Kisii and on 25. 5.2010 the matter appeared before Justice Sergon when directions were taken under Section 200 of Criminal Procedure Code that the matter proceed from where it had reached before him once proceedings are typed. On 28. 9.2011 the matter was adjourned to 6th and 7th of December, 2011.

On 7. 12. 2011 Justice Sergon heard four witnesses and on 25. 7.2012 and 21. 11. 2012 the matter was once again adjourned to 22. 11. 2012 by which time

Justice Sergon had been transferred to the High Court at Kericho.

APPLICATION

On 22. 2.2013 the accused/applicant filed the present application under Article 49(1) (h) of the Constitution of Kenya 2010 to be admitted on bail pending hearing and determination of the case supported by her affidavit sworn on 21. 2.2013 at G.K. Prison Kingongo in which she deponed that she has been in remand since November, 2008 and her case is yet to be concluded. That there were no compelling reasons to deny her bond.

The application was opposed by the state through an affidavit sworn by P.C. Benjamin Mumo in which he deponed that the accused is the wife of the deceased person and that at the time of arrest the accused was almost lynched by the angry members of the public/mob who need to avenge deceased death. That the family of the deceased and the community at large have not healed from the violent death of the deceased and releasing the accused person on bail could worsen a potential volatile situation .

He further deponed that the applicant is believed to have committed the offence jointly with others not before the court who may even become a risk to her upon apprehension that she may disclose their names at later stage and that applicant is likely to abscond if released on bail.

To enable the court decide on the application herein pre bail assessment report was ordered which has now been submitted and which concluded that the environment is very hostile to the accused person and that she could be in danger if released.

It should be pointed out the bail is now a Constitutional right of an accused person under the Provision of Article 49(1)(h) of the Constitution of Kenya 2010 unless there are compelling reasons for being denied bail and that bail if granted must be on reasonable term.

In the case of Alexander Mburu Wanjiku -versus R Muranga High Court Criminal Case No. 3 of 2013 Justice J. Ngaah quoted with approval of Cheson J. as he then was in the case of Nganga -versus Republic [1985] KLR 451 as follows

“ Admittedly, admission to bail is a Constitutional right of an

accused person if he is not going to be tried reasonably

soonbefore that right is granted to the accused there are

a number of matters to be considered.

Even without the Constitutional Provision generally in principal and because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail, unless shown by the prosecution that there are substantial ground for believing that

a) The accused will fail to turn up at his trial or to

surrender to custody or

b) The accused may commit further offence or

c) He will obstract the course of justice.

The primary purpose for bail is to secure the accused persons

attendance at court to answer the charges at a specified

time. I would therefore agree with M. Karanja that the

primary consideration before deciding whether to grant

or not bail is whether the accused person is likely to

attend trial. In considering whether or not the accused

is likely to attend trial the following matters must be

considered.

a) The nature of the charge or offence and the seriousness of

the punishment to be awarded if the applicant is found guilty,

where the charge against the accused is more serious and

punishment heavy there are more probabilities and incentive

to abscond, whereas in case of minor offence there may be

no such incentive.

b) The strength of the prosecution case: the court should not

be willing to remand the accused in custody where the evidence

against him is tenuous, even if the charge is serious. On the

other hand where the evidence against the accused person

is strong it may be justifiable to remand him in custody.

c) The character and antecedents of the accused. Where the

court has knowledge of the accused persons previous behavior

these may be considered but by themselves they do not form

the basis for refusing bail although coupled with other facts

may justify refusal of bail.

d) Accused failure to surrender to bail on previous occasions

can itself be a good ground for refusing bail.

e) Interference with prosecution witnesses: where there is a

likelihood of the accused interfering with the prosecution

witnesses if he is released on bail, bail may be refused but

there must be strong evidence of the likelihood which is not

rebutted and it must be such that the court cannot impose

conditions to the bail to prevent such interference.

It therefore follows that the court in exercise of its

discretion under Section 123 (1) or (3) of the Criminal

Procedure Code . In considering the accused's Constitutional

right to bail, it does not do so in the abstract but also considers

the factors above.”

12. With this in mind I now turn to the application before the court and noted the only compelling reason given by the prosecution is that the applicant is accused of having committed the murder of her husband and that the family of the accused and the community at large have not healed from the said death that the accused is at risk to herself if released on bond.

13. In this matter from the history outlined above I have noted that the accused person has been in custody for the last five (5) years and if the police have not managed to arrest those who are alleged to have committed the offence jointly with the applicant chances are they might never be arrested and if their names have not been disclosed so far by the accused chances are she might not disclose the same if at all they are there.

14. No reason has been given by the prosecution to support the contention that the applicant is likely to abscond if released upon bail.

15. The applicant at this stage of trial is presumed to be innocent and having been in custody for the last five (5) years and noting that this matter is part heard before Justice Sergon who has been transferred to High Court at Kericho and directions have not been given on how the matter is to proceed chances are that it might take much longer for the trial to be concluded and should the accused person be found not guilty it might not be possible to compensate her for the period the trial has taken.

16. It should also be noted that the state is under a duty to provide security to all the citizen of Kenya including the applicant herein and that family of the victim should note that whereas they have a right to seek and see that justice is done, justice is a two sided issue and therefore the rights of the accused person must also be safeguarded.

17. I will therefore allow the application herein and order that the applicant be admitted to bond on the following terms.

i) A bond of Kshs. 3 million with two surety of similar amount.

ii) The applicant during the period the trial herein should not

go to the village of the deceased herein.

iii) The applicant to appear before the Deputy Registrar of the

Court for mention once after every 30 days until the

completion of the trial andshould not have the juridiction of

this court without the prior permission of the said Deputy Registrar.

Dated and delivered this 30th day of January 2014.

J. WAKIAGA

JUDGE

ruling read in open court in the presence of the accused and Mr. Cheboi for the state and in the absence of Miss Mwai for the accused.

J. WAKIAGA

JUDGE