[2017] KEHC 2750 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL CASE NO. 4 OF 2017

REPUBLIC ………....................…..........................PROSECUTION

VERSUS

WARIO FORA BORU......................................................ACCUSED

R U L I N G

1. This is a ruling on an application for bail pending hearing and determination of this case. It is dated 16/03/2017 filed by the applicant through his advocate Messrs Njuguna Njoroge & Co. Advocates.

2. The grounds contained in the supporting affidavit and in the face of the application are that bail is a constitutional right and that the accused ought to be granted the orders sought herein. It is deposed that he is willing to abide by any conditions that this court may impose and is committed to attend court when required to do so during the trial. He further states that he is a law abiding citizen and has no criminal record.

3. The applicant further states that he is not a flight risk and that he has a young family of a wife and four minor children.

4. The respondent opposed the application relying on the affidavit of the investigating officer one John Ngituyu sworn on 25/04/2017. He deposed that the applicant killed his colleague the deceased at Embu GK Prison where he worked and also injured another colleague one Kenneth Muriithi Njagi who is still admitted at Chogoria Mission Hospital in an incapacitated state.

5. The respondent argues that if the applicant is released on bail, he is likely to finish his colleague who is now admitted in hospital. It was further stated that before the fatal shooting, the accused had complained that his colleagues were hostile to him.

6. The respondent further stated that the accused was interdicted after the commission of the offence and for that reason the employer has no grip on him. There are high chances of absconding if released on bond.

7. Ms. Manyal for the respondent argued that the reasons given by the investigating officer in his affidavit are compelling enough to justify denial of bail. She added that the said Kenneth Muriithi now admitted in hospital is the key witness of the prosecution having witnessed the incident that resulted in the death of the deceased. It was contended that there is a high possibility of the accused interfering with him thus jeopardizing the prosecution's case.

8. The respondent further argues that the life of the applicant is in danger should he be released on bond. The atmosphere is still hostile out there and it is therefore in his interest and safety that he remains in custody.

9. Under Article 49(1)(h) bail is a constitutional right of the accused in a criminal case. However, if the prosecution demonstrates compelling reasons, the court may deny bail. Ideally, bail is a discretionary matter for the court provided that the discretion is exercised judiciously.

10. The respondent claimed that the issue of hostility against the applicant from his colleagues is a factor that works against him being granted bail. However, the applicant has been interdicted and would have to stay in his home area save for occasional reporting to the employer.

11. In my opinion, the colleagues may not be a threat to the applicant for he will be living away from the prison. The reporting to the senior administration may not expose the applicant to danger or hostility from his colleagues. It is also noted that the applicant had been transferred to Kerugoya after the incident and before he was charged.

12. I am not satisfied that this is a compelling reason for not releasing the applicant on bond.

13. There was no information in the affidavit of the investigating officer as where the family of the deceased lives. The possibility of the deceased family members posing a security threat to the applicant does not arise.

14. The prosecution expressed fear that their key witness who was also wounded by the applicant and who is still recovering may either be interfered with or even eliminated should the applicant be released on bond.The witness was still recovering in hospital at the time the replying affidavit was filed about five months ago.

15. I find the fear of the prosecution well founded in that the release of the applicant poses a risk of loss of very crucial evidence. The life of the key witness who was injured during the incident may also be at risk. It is not known why the applicant attacked him after killing the deceased.

16. It was held in the case of AHMAD ABOLA FATHI MOHAMMAD Nairobi Criminal Revision No. 373 of 2012 that citizens must be protected from imminent danger or threats to their lives so as to go about their day to day business.

17. It is my considered opinion that the risk to the life of the key witness must be mitigated by this court by not granting bail to the applicant. There is need to preserve evidence that may assist the court in this case by not exposing the witness to the risk of either elimination or interference.

18. I am satisfied that this is a compelling reason not to release the applicant on bail.

19. I find this application not merited and dismiss it accordingly.

DATED, DELIVERED AND SIGNED AT EMBU THIS 10TH DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Njoroge for Applicant

Ms. Manyal for State

Accused present