Prosecutor v SJI (Minor), Juma Hamisi Kinyanjui alias Kaka, Juma Hussein Mohamed Omar alias Macho & Brian Kenani alias Kaisilo Alias Fazul [2022] KEHC 1723 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE28 OF 2020

PROSECUTOR...........................................................................REPUBLIC

VERSUS

SJI (MINOR)...........................................................................1ST ACCUSED

JUMA HAMISI KINYANJUIAliasKAKA.........................2ND ACCUSED

JUMA HUSSEIN MOHAMED OMARAliasMACHO.....3RD ACCUSED

BRIAN KENANIAliasKAISILOAliasFAZUL................ 4TH ACCUSED

RULING

BRIAN KENANIAliasKAISILOAliasFAZUL has filed an application dated 23. 7.2021. He is the accused person in HCCR case No. E005/2021, and the intended 4th accused in the intended consolidated charge sheet in HCCR Case No. 28/2020. The application seeks that the applicant be granted bond pending the determination of his case. His application is supported by the affidavit of his advocate, Marygoretti Cheruto Chepseba sworn on 23. 7.2021.

In the affidavit, it has been deponed that the accused faces a charge of murder, which is bailable under the constitution, and that the applicant undertakes to avail himself for his trial. Further, that applicant will not interfere with the prosecution witnesses, neither is he a security threat.

The state has opposed this application and relied on the affidavit of one No. 110358, PC Felix Kemboi. It has been opposed on grounds as follows:-

i) THAT from the date of the incident on the night of 3rd/4th May 2020, the applicant went underground till he was arrested on 17. 1.2021, a period of about 8 months. That this demonstrates that he is a flight risk.

ii) THAT the applicant was arrested by members of the public who attempted to lynch him only for him to be rescued by the police. That if released, his security would be at risk.

iii) THAT other accomplices are still at large.

iv) THAT applicant has no fixed abode.

v) THAT applicant faces a serious charge.

vi) That if released on bond, he is likely to interfere with prosecution witnesses.

I have considered this application and the affidavit in support of the same. I have also considered the affidavit filed opposing this application. From the onset, I must confirm that this application is exactly the same as those made by accused 2 and 3 and which the court considered and ruled on on 17. 11. 2020. The circumstances of this case and those of accused’s 2 and 3 are also the same including the prosecution witnesses.

In the said ruling of 17. 11. 2020, the court considered the same objections raised by the prosecution. All the objections were dismissed except one. In the ruling the court held that the prosecution had proved the existence of at least 1 compelling reason. That for the safety and security of the accused’s, it is proper and just that they be denied bail.

In the present scenario, it has been deponed that accused 4, the applicant was arrested by members of the public who wanted to lynch him only for him to be rescued by the police. That his own security would not be guaranteed should he be released on bail. This is exactly the same situation as it relates to accused 2 and 3. I am therefore constrained to reach the same finding that this remains a compelling reason good enough for this court to deny the 4th accused (applicant the right to bail.

This court has further considered the fact that, whereas accused 1, 2 and 3 were arrested almost immediately after the incident, it is not until 17. 1.2021, about 8 months later, that the applicant was arrested. The prosecution have alleged that he had gone underground to evade arrest.

This court is convinced that the applicant in fact went underground to evade arrest. Had he not gone underground, the members of public who eventually arrested him on 17. 1.2021 would have seen and arrested him much earlier. His disappearance with a clear intention to avoid being arrested, convinces this court, that the applicant is indeed a flight risk who will abscond never to turn up for his trial.

I am in the circumstances convinced that the prosecution has proved the existence of compelling reasons that justify the denial of the right to bail to the applicant. I accordingly find no merit in the application of the applicant dated 23. 7.2021. I dismiss the same wholly. Applicant to remain in custody pending determination of the case.

D. O. OGEMBO

JUDGE

9. 3.2022.