George Kamau Ndungu,Isaac Kamori Ndungu ,Gipson Munga Mburu & David Kitsaka Mafunga v Republic [2013] KEHC 6788 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISCELLANEUS CRIMINAL APPLICATION  NO. 255 OF 2013

GEORGE KAMAU NDUNGU………………………………...…..APPLICANT

ISAAC KAMORI NDUNGU …..……….…………………..……..APPLICANT

GIPSON MUNGA MBURU .………..…………………….….…..APPLICANT

DAVID KITSAKA MAFUNGA …..……….………………..…......APPLICANT

VERSUS

REPUBLIC………………………………………………….....RESPONDENT

RULING

Introduction

What is pending before this court is an application dated 23rd August 2013 brought by way of Chamber Summons, under Articles 19, 20, 24, 50, 159 of the Constitution, and Section 135and382of the Criminal Procedure Code.In the application, George Kamau Ndungo, Isaac Kamori Ndung’u, Gipson Munga Mburu and David Kitsaka Mafunga pray that there be a stay of the proceedings in Nairobi Criminal Case No. 731of2013,that Criminal Cases No. 731and 789,both of2013  be consolidated, and that the bail terms in the two files be consolidated, and reviewed.

Consolidation of the two cases

Mr. Githinji, learned counsel for the applicants, submitted that the offences are in regard of the same accused persons and that save for count no. 3 inCm Cr. 789/13 and count No. 2 in Cm Cr. 731/13, the remaining two counts in Cm cr. 789/13 and one count in Cm Cr. 731/13 are of a similar nature. He urged further that these two counts although not of similar nature, arise from similar facts, and that all these offences occurred within the Industrial Area of Nairobi within a span of one month, and are being investigated by the same Police Station.

Miss Maina learned state counsel opposed the application on the grounds that the offences were committed on different dates, at different places, and against different complainants, and therefore, have different facts. She contended that the fact that the accused persons are the same in the different files does not matter, and that there would be no duplication of charges since there are different offences in different charges. She urged that, in fact, should they be convicted in the different files, there would be confusion on appeal if the files were consolidated.

Mr. Thiongo cited the case of Ngibuini vs Republic 1987 KLR pg 517, where the Court of Appeal noted that where there is a single complex of offences connected in time and kind it is undesirable though not unlawful for the accused person to be arraigned in separate trials. Here I make the same distinction made with regard to the cited case by Omondi J, in Joseph Mbugua Waweru and anor vs Cr. Misc. App 55 and 54 of 2008, to which Mr. Thiongo also referred the court. The material issue in Ngibuini’s case was with regard to the sentencing and indeed, that is why the court of Appeal allowed for consolidation on the basis that having separate charges against the accused deprived him of the possibility of serving the sentences concurrently.

Section 135 (1)of theCriminal Procedure Codeunder which this application is brought states as follows:

“Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”

The main issue for determination is whether the two sets of offences ‘form or are part of a series of offences of’ a ‘similar character’. The relevant principles as set out in the 2010 edition of Archbold: para 1 – 158 include the following:

“…a sufficient nexus must nevertheless exist between the relevant offences; such a nexus is clearly established if evidence of one offence would be admissible on the trial of the other, but the rule is not confined to such cases; all that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together in the interests of justice, which include, in addition to the interests of the defendants, those of the Crown, witnesses and the public.”

This application for joinder of charges was made in the trial court but was declined.   Whereas the lower court made a finding that it was upto the prosecution to decide whether to proceed separately or on a consolidated charge sheet, that is not entirely correct as the court can be moved by either side to order for the consolidation of charges, if it is in the interest of justice. As stated by Makhandia J (as he then was) inRoy Kiama Gichuhi v Rep Misc. Cr. App 278 of 2008, Consolidation is ordered not for the convenience of an accused person but for ease of trial by the court. It may also be ordered where the charges sprung from the same transaction and the witnesses likely to be called are the same.

It is my considered view that were consolidation to be allowed in the two matters herein, it would make the trial a very cumbersome process for the trial court. The charges did not all spring from the same transaction and, although similar, relate to different dates and places. The witnesses to be called are also not the same ones.

Consolidation of the terms of bail:

The applicants were granted bail in the trial court but the terms thereto are said to be beyond their reach if they have to meet them in both files. Mr. Githinji relied on the case of Republic v Jackton Mayende Bungoma Cr. App 55 of 2009, and submitted that the affidavit of Sgt Shegu was based on mere conjecture, and that there was no evidence that the applicants would interfere with witnesses or would be a flight risk, if released on bail.

Section 123(3) Criminal Procedure Code, vests in the High court the jurisdiction to interfere with the decision of the trial court on matters of bail, emanating from a trial court.  That intervention by the High Court however, ought to be exercised with great circumspection, and in reliance of principles which have been developed by the courts.  It is not to be exercised capriciously. Art 49(1)(h)of theConstitution is not couched in absolute terms.   It provides that an arrested person has the right.....

“to be released on bond or bail, or reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released”.

The operative words are therefore “reasonable conditions” and “compelling reason not to be released.”  The primary consideration in this application is whether the accused person shall attend court and be available for the trial. This would require the court to take into account the gravity of the charges, the severity of the available sentence in the event of a conviction and the antecedents of the accused person.

At this stage the applicants have the presumption of innocence on their side since they have not yet been tried and found guilty on the charges with which they are faced. Nevertheless the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence, as to whether they should skip bond or not.  Such a possibility is real and it has happened before in similar cases, even though a mere statement that an accused person would abscond or interfere with witnesses is not sufficient to deny them bail.

The question of presumption of innocent was canvassed in the case of Watoro v Republic (1991) KLR 220 at 283, by Porter, J thus:

“The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion.  If the presumption of innocence were to be applied in full, there would never be a remand in custody……  What I think is important for the court to bear in mind, and the reason for the caution to remember the presumption of innocence, is that it would be wrong to leap to the conclusion that the accused was guilty merely because he had been charged and decide the bail application on that basis.”

The need to balance between the presumption of innocence and the seriousness of the offence and the sentence to follow in the event of a conviction, was re-visited in Philip Anyanya vs Republic Cr. 23 of 2010, by Ibrahim J as he then was as follows:

“Whatever the court will decide, the fear and anxiety exerting on an accused’s mind during the trial in a murder case cannot be ignored.  The possibility of thinking of flight by an accused person facing a capital offence is real and cannot be wished away.  It is therefore true that the seriousness of an offence and the sentence for which is possible upon conviction is a matter which can bear on the accused and can affect his decision to attend trial or not.”

This is not to say that because other accused persons went into hiding rather than face prosecution, these applicants will do so.  Every decision must be arrived at on the circumstances of each case.  Emphasis is on the fact that the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction.

It is also my considered view that were consolidation of the bail terms to be allowed in the two matters herein, it would make the administration of those bail terms a very cumbersome process for the trial courts.  In any case as I have stated elsewhere in this ruling the charges did not all spring from the same transaction and, although similar, relate to different dates and places.

Conclusion

Without losing sight of the fact that by dint of the provisions of Article 50(2) (a) of the Constitution; “Every accused person has the right to a fair trial”, I am persuaded for the foregoing reasons and observations that the trial courts exercised their discretion properly.

The applications are therefore found to be lacking in merit and in the circumstances, I decline to grant the prayers for the consolidation of the two cases or of the bail terms. I dismiss both applications with an order that the trials be expedited and that, if possible, the hearings should proceed on a daily basis. Further that the applicants are at liberty to re-visit the application for review of bail terms downwards once the trial commences.

It is so ordered.

SIGNED DATED and DELIVERED in open court this 6th day of November 2013.

L. A. ACHODE

JUDGE