[2017] KEHC 2409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO.4 OF 2017

REPUBLIC

Vs.

TIMOTHY MWENDA GICHURU……………………………………………………………….1ST ACCUSED

JACKSON MUGAMBI MUTWIRI…………………………..…………………………………2ND ACCUSED

NATHAN MURIUKI MUTHURI………………………………………………………………..3RD ACCUSED

RULING

[1] The accused persons are charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code CAP 63 of the Laws of Kenya. They have applied to be released on bail/bond pending the hearing and determination of this case. The application for bail/bond was opposed by IP Leonard K Ng’etich, the investigations officer in this case who deposed inter alia that the lives of the accused persons would be greatly endangered if they were released on bail as one of the persons suspected to be the accused's ring leader and accomplice by the name of Francis Sunguka was lynched by angry members of the public at the scene of crime and that the accused persons were chased by a section of members of the public who had gathered in large numbers at the scene of crime but managed to escape with injuries and were later rescued by police officers to the annoyance of the mob who swore to lynch them whenever they spotted them. He averred further that the 1st accused was an Ex prison officer/warder and a deserter with no fixed abode. In addition, the 2nd and 3rd accused persons were trained officers and more specifically the 2nd accused was a police constable attached to the General Service Unit Kipsaro Camp Mt. Elgon near the Uganda border. Therefore, he believed that if released on bond, the accused would use their positions or status to interfere with witnesses and evidence in this case.

[2] The investigations officer reiterated the contents of his Replying Affidavit in cross examination and further contended that although the 3rd accused had never been a member of the disciplined forces, he was a member of a criminal gang and could thus interfere with witnesses.

[3] Mr. Mungai argued for the state that the accused persons were former police officers and taking into account the circumstances of the offence, the gravity of the offence, public interest generated by the case and their character should deny them bail.

[4] The accused persons on the other hand denied the contents in the Investigations Officer’s affidavit and further contended that they would comply with all the terms and conditions as the court may set and undertake to attend court as and whenever required.

DETERMINATION

[5] Unlike in the old constitutional order where persons charged with capital offences were not eligible to bail, the Constitution of Kenya, 2010 in Article 49 (1) (h) decreed that all arrested persons regardless of the charge are eligible to be released on bail or bond upon reasonable conditions unless there are compelling reasons not to be so released. What amounts to compelling reasons will depend on the circumstances of each case. But it must be strong, rousing and one that brings conviction upon the court that the accused should not be released on bond. On this see Odero & Nzioka JJ, and Majanja J in separate decisions in MSA HC CR APPL NO 66A & 66B OF 2011 MOHAMED ABDULRAHMAN SAID & ANOTHER V REPUBLIC [2012] e KLR, andNBIHCJR MISC APP NO 271 OF 2011 WILSON THIRIMBA V DPP [2012] e KLR respectively. You may also see the case of JOKTAN MAYENDE & 3 OTHERS V R BUNGOMA HCCRC NO. 55 OF 2009 where the Court stated that:

“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.”

[6] Applying the above test of the law, the investigations officer’s averments:

(a) That the 1st accused was a deserter from the Kenya Prisons Service with no fixed abode;

(b) That the lives of the accused persons would be greatly endangered if they were released on bail as one of the persons suspected to be the accused's ring leader and accomplice by the name of Francis Sunguka was lynched by angry members of the public at the scene of crime; that the accused persons were chased by a section of other members of the public who had gathered in large numbers at the scene of crime and managed to escape with injuries upon being rescued by the police; and the mob swore to lynch them whenever they spotted them; remained largely unchallenged even in cross examination.

[7] The evidence by the IO leaves no doubt that there is also great possibility that the accused would interfere with witnesses if released on bond. This is a compelling reason to deny the accused bail. I also reckon that the accused apprehension of danger to their lives may as well provoke absconding. When these factors re combined, they produce compelling reasons not to release the accused persons on bail. Accordingly, I deny the accused bail. They shall remain in custody as this case is heard. It is so ordered.

Dated, signed and delivered in open court at Meru this 5th day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Muthomi advocate for 2nd accused

Mr. Muthomi advocate for Gitonga advocate for 3rd accused.

M/s. Atieno for 1st accused

Mr. Mulochi for State

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F. GIKONYO

JUDGE