[2023] KEHC 27408 (KLR)

Waihenya v Republic (Criminal Case E012 of 2023) [2023] KEHC 27408 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27408 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case E012 of 2023

DO Chepkwony, J

October 5, 2023

Between

Benjamin Muiruri Waihenya

Accused

and

Republic

Respondent

Ruling

1. The Accused/Appellant is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.The particulars of offence are that:-“On the night of 1st and 2nd March, 2023 at Githunguri township , Githunguri Sub county within Kiambu County, the accused/applicant murdered Elizabeth Wanjiku Mwangi”.

2. The Accused has filed the Notice of Motion Application dated 6th April, 2023 seeking to be released on bond or bail on such conditions that the court may determine.

3. The Application is premised on the grounds set out on its face and supported by the Affidavit of Benjamin Muiruri Waihenya, the accused herein sworn on even date.

4. According to the accused, he is not married but is a custodian of his younger sister who is in Grade 6. He holds that his mother committed suicide upon his arrest. He goes on to state that he has never been charged before for any criminal offence, thus he is not a flight risk and shall abide by all conditions set by the court including attending court for mentions and hearings if released on bail or bond. He contends that the offence of murder is bailable and he qualifies for a constitutional right of being granted bail/bond terms. He therefore urges the court to allow the application.

5. The prosecution filed an Affidavit through No. 93659 PC Benson Omudi sworn on 26th June, 2023 who is the Investigating Officer in which he avers that there are compelling reasons as to why the opposed the release of the Applicant on any bail and bond terms. He states that the nature and seriousness of charges against the accused may lead to him absconding the court if released on bond. The prosecution holds that some of the witnesses reside within the same locality with the accused, so that if he is released, it is feared he may interfere with them. He adds that the accused and the deceased lived in the same locality and the victim’s family is hostile to the accused person.

6. The prosecution Counsel holds that in the event the court grants accused release on bail and bond, he urges the same should be conditional. In the ultimate, he urges the court to deny the accused release on bail and bond terms.

7. On 13th June, 2023, parties were directed to canvass the application by way of written submissions. The parties complied with the Respondent filing their written submissions on 3rd July, 2023 and the Applicant’s filed theirs on 17th July, 2023. The court also called for a social inquiry to be conducted and filed on 18th April, 2023.

Determination 8. In considering the accused/Applicant’s application on whether or not to release him on bail/bond terms, I have read through the affidavits filed by either party in support or opposition alongside their respective written submissions and the pre-bail report filed by the Probation Officer.

9. It is trite law that under Article 49(1)(h) of the Constitution it is a right of an accused person to be released on bail and bond. However, this right is not automatically granted if there exist compelling reasons to deny the same as per the provisions of Article 49 (1)(h) which states that: -‘An accused person has the right …(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.’

10. In considering what is required to be considered if one is to be released on bail/bond terms, is if the reasons tendered in opposition thereof are compelling enough to warrant the denial of bail and bond terms. The court in the case of Republic –vs- Joseph Thiongo Waweru & 17 Others [2017] eKLR defined compelling reasons as follows: -“The Constitutional standard for denying bail is “compelling reasons” test. The burden is on the Prosecution to establish the existence of the “compelling reasons” that would justify denial of bail. Our emerging jurisprudence on the question is clear as to the kind of evidence needed to establish the “compelling reasons”: The evidence presented must be “cogent, very strong and specific evidence” and that mere allegations, suspicions, bare objections and insinuations will not be sufficient.”

11. Having gone through the respective affidavits and submissions filed by either party in support of their positions, this court finds that there are no compelling reasons that have been demonstrated or presented to warrant the denial of the accused to be released on bail and bond terms. The only argument is that the accused is likely to interfere with witnesses, which grounds has not been substantiated.

12. A reading of the pre-bail information report has clearly indicated that save the mother of the deceased the rest of the categories interviewed are not opposed to the accused being released on bond with appropriate conditions.

13. In view of all the above, and given the nature of the offence and circumstances surrounding the same, the court allows the application for the accused to be released on bond on condition that:-a.The accused be released on his own bond of Kshs.500,000/= with one surety of a similar amount and a contact person.b.The surety and contact person to provide full particulars of their place of abode, work and residence of the accused person.c.In the alternative, the accused may be released on a cash bail of Kshs.300,000/=.d.The accused to attend court as and when required until the determination of the same.e.Failure to abide by the above conditions, will render the bond/bail terms as cancelled.It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER, 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Ngesa counsel for the StateM/S Loy counsel for the accusedCourt Assistant - Martin