[2014] KEHC 2079 (KLR)
The court found that although the Constitution grants a right to bail, this right is not absolute and may be limited where compelling reasons exist. The applicants' prior conduct of fleeing the scene and being traced to distant counties demonstrated a real risk of absconding if released on bail. The court was not...
Source-derived case information.
- Citation
- [2014] KEHC 2079 (KLR)
- Parties
- Applicant: Wilson Mwangi Githinji; Applicant: Simon Ndambari Gatumu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 70 of 2013
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- applications for bail dismissed
- Judges
- CC Kipkorir
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Flight Risk, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Mwangi Githinji
Applicant
Simon Ndambari Gatumu
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial under Article 49(i) h of the Constitution.
- 2 Whether there are compelling reasons to deny the applicants bail, specifically risk of absconding and interference with witnesses.
Ratio Decidendi
The court found that although the Constitution grants a right to bail, this right is not absolute and may be limited where compelling reasons exist. The applicants' prior conduct of fleeing the scene and being traced to distant counties demonstrated a real risk of absconding if released on bail. The court was not persuaded that the applicants would attend trial if released, and considered this a compelling reason to deny bail. The interests of justice, including the need to ensure attendance at trial and prevent interference with witnesses, outweighed the applicants' right to bail in this instance. Accordingly, the applications for bail were dismissed.
Court Disposition
applications for bail dismissed
Orders
- The applicants' respective applications for bail are dismissed.
- The applicants shall remain in custody pending trial.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL CASE NO. 70 OF 2013
WILSON MWANGI GITHINJI.................................................1ST APPLICANT
SIMON NDAMBARI GATUMU............................................2ND APPPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING
The accused Wison Mwangi GithinjiandSimon Ndambari Gatumu are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 11th day of June, 2013 at Ngong Township within Nairobi County murdered Grace Njeri Lepaso.When arraigned in court on 3rd July 2013,they denied the offence and were remanded in custody.
By their respective applications dated 16th May 2014 and 3rd June, 2014 they seek to be released on bail pending their trial which is set to start on 29th September, 2014. In their respective affidavits each applicant states that he will not interfere with investigations; that he has a constitutional right to be released on bail or bond pending trial; that there were no compelling reasons not to be released; and, that he will attend trial whenever required.
The State has opposed both applications vide the replying affidavit of No. 43656 Corporal Ruth Wangechi of Divisional C.I.D. Kajiado North who is the investigating officer in the case. She depones at paragraph 4 that the murder was committed at Siranga area of Matasia where both the applicants and the prosecution witnesses reside and that their release would cause the witnesses to fear to testify leading to a possible miscarriage of justice; that the applicants may be harmed by the community as the deceased person was a matriarch who was loved and held in high esteem by the said community.
Further she depones at paragraph 6 and 7 that there is sufficient evidence to prove the guilt of the applicants and the likelihood of securing a conviction was high; and that for this reason the applicants may abscond trial and flee the jurisdiction of the court. She further states that the two applicants fled the scene and were traced to Karatina (Nyeri County) and Kirinyaga (Kirinyaga County) respectively.
At the hearing of the application on 10th July 2014, Mr. Ochako for both applicants dismissed the replying affidavit of Corporal Ruth Wangechistating that the averments were not borne of investigations and therefore not factual. Mr. Konga for the State relied on the replying affidavit underscoring the weight of evidence against the applicants. He also submitted that the accused were likely to evade trial having tried in the past to escape justice by fleeing to Karatina and Kirinyaga respectively.
I have considered the opposing affidavits and submissions. The Constitution under Article 49(i) h grants a right to bail to an accused person. However, the right is not absolute and may be curtailed by the court where there are compelling reasons. In granting or denying bail, the court considers whether or not an applicant is likely to attend his trial. In the present case, I am not persuaded that the applicants will attend trial if released. The applicants have by their antecedents of fleeing from the scene of the incident to Karatina and Kirinyaga respectively shown that they can easily evade trial if released. I consider this to be a compelling reason why they should be denied bail. Further, in the circumstances of this case, I consider that the interests of justice will be served in denying rather than allowing the applications. I further note that the trial is scheduled to start on 29th September 2014.
From the foregoing, I exercise discretion to deny the applicants bail. Their respective applications are dismissed.
Ruling delivered, dated and signed at Nairobi this 7thday of August, 2013
R. LAGAT - KORIR
JUDGE
In the presence of:
……………………………...: Court clerk
……………………………...: Applicant
……………………………....: For the 1st accused/applicant
………………………………..: For the 2nd accused/applicant
……………………………….: For the State/respondent