[2013] KEHC 1521 (KLR)
The court found that the prosecution's initial concerns regarding interference with witnesses were based on the fact that the applicants and the witnesses resided in the same locality. However, after three key prosecution witnesses from that locality had already testified, the risk of interference was no longer...
Source-derived case information.
- Citation
- [2013] KEHC 1521 (KLR)
- Parties
- Applicant: Thomas Mumo Mwasya; Applicant: Zackary Muoki Mwanza; Applicant: Johanness Mutisya Muluila; Applicant: Johnson Ngungi Ngumbi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 143 of 2012
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Bail Review Application
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Constitutional Rights, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Mumo Mwasya
Applicant
Zackary Muoki Mwanza
Applicant
Johanness Mutisya Muluila
Applicant
Johnson Ngungi Ngumbi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Bail Review Application
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial under the Constitution.
- 2 Whether there are compelling reasons to deny bail to the applicants.
- 3 Whether the risk of interference with witnesses remains after some witnesses have testified.
Ratio Decidendi
The court found that the prosecution's initial concerns regarding interference with witnesses were based on the fact that the applicants and the witnesses resided in the same locality. However, after three key prosecution witnesses from that locality had already testified, the risk of interference was no longer substantiated. The prosecution did not indicate that any remaining witnesses from the locality were yet to testify, and the remaining witnesses appeared to be formal witnesses. Furthermore, the prosecution did not express concerns about the applicants absconding. The court emphasized that the main consideration in bail applications is whether the accused will attend trial. In the...
Court Disposition
application allowed
Orders
- Each accused may be released on a personal bond of Kshs.1,000,000 with one surety of a like sum.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC. APPLICATION NO. 143 OF 2012
THOMAS MUMO MWASYA
ZACKARY MUOKI MWANZA
JOHANNESS MUTISYA MULUILA
JOHNSON NGUNGI NGUMBI ………… APPLICANTS
VERSUS
REPUBLIC ……………………………………….… RESPONDENT
R U L I N G
The Application filed in court on 2/10/2012 seeks orders for the review of the bail application.
The grounds are set out in the affidavit in support. It is averred that bail is a Constitutional right and that there are no compelling reasons in this case why that right should be curtailed. The accused persons have stated that they are ready to abide by the terms given by this court.
The application is opposed by the State. The Investigating Officer swore a replying affidavit on 30/1/2013 stating that there was a likelihood of the accused persons interfering with witnesses. It was also stated that the accused face the charge of murder which is a serious offence and attracts a severe sentence.
On 23/5/2011, this court made a ruling that denied bail pending trial at that stage. In the said ruling, the court made the following observations:-
“It is also evident from the prosecution witness statements annexed to the supporting affidavits that the accused persons know the identities of the witnesses and the nature of their evidence. In these circumstances, it is not unreasonable for the state to express the fear that the accused persons who are prominent people within Makueni District should inflict fear or compromise the prosecution witnesses who reside in the same locality.”
Subsequently, on 25/7/12, three prosecution witnesses testified. The prosecution then applied for adjournment and also applied for court summons to compel the attendance of three prosecution witnesses, that is, the doctor and two police officers. The case thereafter stalled for one reason or the other.
The replying affidavit was filed long after the evidence of the three prosecution witnesses who reside in the same locality with the accused persons testified. The replying affidavit does not mention whether there are any witnesses from that locality who are yet to testify. What can be construed from the prosecutions’ application for adjournment after the three witnesses testified is that the remaining witnesses are formal witnesses who do not fall in the category of the witnesses referred to by the prosecution is likely to be interfered with.
It is noted from the replying affidavit that the accused persons reside in Makueni. There are no reservations expressed by the prosecution that the accused are likely to abscond. The mother of all considerations on whether or not to grant bail is whether the accused will attend court for trial.
With the foregoing, I am persuaded to grant bail. I therefore allow the application. Each accused may be released on a personal bond of Kshs.1 Million with one surety of a like sum.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20thday of September2013.
………………………………………
B. THURANIRA JADEN
JUDGE