[2022] KEHC 13775 (KLR)

Thuranira v Director of Criminal Investigations & 2 others (Miscellaneous Criminal Case 49 of 2022) [2022] KEHC 13775 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13775 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Criminal Case 49 of 2022

EM Muriithi, J

October 4, 2022

IN THE MATTER OF ARTICLE 23(3) AND ARTICLE 165(3) OF THE CONSTITUTION OF KENYA

Between

Patrick Thuranira

Applicant

and

Director of Criminal Investigations

1st Respondent

Inspector General of Police

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Ruling

1. The applicant, vide an application under certificate of urgency dated 28/9/2022 brought pursuant to Articles 19, 20, 21, 22, 23(3), 24, 28, 29, 49, 169 and 165(3) of the Constitution and the High Court Practice & Procedure Rules Part 1 & 3, seeks arrest and release on bond, otherwise known as anticipatory bail.

2. In his supporting affidavit sworn on even date, he avers that he was arrested on 26/9/2022 by officers of Meru Police Station to record a statement pertaining to the charge of possession of goods not affixed with KRA excise stamps. He denies the allegations that the said illicit brew namely Smart Vodka killed people at Garbatulla in Isiolo, as he was arrested in Meru and not Isiolo. The court in Meru took cognizant of the said facts and admitted him to a bond of Ksh.700,000. After being informed by the police that he would be charged with murder in Isiolo, he is apprehensive that he will be rearrested. He assures this court that he will present himself if and when required by the DCI Isiolo to help with investigations. He is also apprehensive that the police are out to harass, intimidate and incarcerate him and it is his honest belief that an arrest is imminent.

3. During the pendency of this application, the 3rd respondent successfully applied and obtained custodial orders in Meru CMC Misc. Application No.E124/20022, to the effect that, “the accused person be detained for a period of six days at Isiolo Police Station, to ensure the police to clear investigation the police shall use the period to expeditiously clear their investigations. Upon expiry of six (6) days, if the investigating officer would not have cleared investigation, the Accused shall be admitted to bond, bond with surety of Ksh.400,000/= and shall be reporting to the investigating officer every Friday before the investigations are complete and/or he is Charged. Mention before the plea court on stands to 5th October 2022. ”

Determination 4. The court accepts that investigations into the circumstance of the death, including post-mortem examinations of the deceased persons the object of the intended murder charges are crucial to the Prosecution’s Case, and the court must not prejudice the investigations and or prosecution of the case by ordering release of the applicant, who may interfere with investigations and witnesses before statements and other evidence are taken.

5. The essence of a fair trial is that the court must afford a fair trial of the accused consistently with his bill of rights in relation to a criminal trial and a corresponding fair chance of the Prosecution to prove its case in discharge of its constitutional prosecutorial mandate of the State. The court would not, however, hesitate to interfere and release the suspect on bail or unconditionally, if it considers that the denial of bail serves other ulterior motives other than affording the Prosecution opportunity for the effective prosecution of crime and or it is oppressive, for unnecessarily long period or terms of bail as to amount to a prior denial of bail before charge.

6. This court is, therefore, acutely aware of its constitutional duty to protect the rights and fundamental freedoms of Kenyans where need be, on one hand, and its obligation not to curtail the other organs of state from carrying out their constitutional mandate.

7. I have also noted similar view taken in Republic v Chief Magistrate Milimani & Another Ex Parte Tusker Mattresses Limited & 3 Others [2013] eKLR (Odunga J. (as he was then):“However, before going to the merits of the instant application it is important to note that what is sought to be prohibited is the continuation of investigation other than a criminal trial. The court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial…., the High Court ought not to interfere with the investigative process conferred upon the police or the Director of Public Prosecutions unless cogent reasons are given for doing so.”

8. While the court deplores sharp practice in the DPP’s approaching the trial court for an ex parte order after an inter partes appearance on 27/9/2022, and obtaining order to detain the applicant for seven (7) days pending the conclusion of investigations, the court does not find that his rights have been violated because, firstly, Bail may be withheld where there are compelling reasons disclosed and likelihood of an accused to interfere with investigations and witnesses are such compelling reasons; secondly, the period of 7 days for the DPP to conclude investigations is not unreasonable; and thirdly, the applicant was already granted bail upon terms of a bond of Ksh.400,000 with one (1) surety, which takes effect upon expiry of the 7 day period allowed for investigation to complete.

9. Accordingly, this court will defer to the order of the Magistrate’s Court on first appearance before court on the proposed charge of murder, which has already granted bail to the applicant pending charge before the High Court.

ORDERS 10. The application for bail pending charge by this court is in the circumstances of this case redundant as the applicant is already on a reasonable bond of Ksh.400,000/- with one surety only held in abeyance for seven (7) days expiring on two days from today, on the 6th October 2022, to allow the investigations to complete.

11. The application for anticipatory bail before this court is declined as unnecessary in the circumstances of this case.

12. There shall be no order as to costs.Order accordingly.

DATED AND DELIVERED THIS 4TH DAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Ms. Wambulwa, Advocate for the Applicant.Ms. Nandwa, Prosecution Counsel for the DPP.