Republic v Anthony Mbindyo Nyamai, Fredrick Munyunzu Musyoki, Wilfred Mutisya Munyao,Fredrick Muasya Munyao, Anthony Mutua Mutiso, Paul Muvengei Zacharia, Fredrick Mutiso Mutua, Benson Mwanza Munyao, Noah Mutiso Muvengei, Shadrack Mutio Muvengei, Jackson Mutinda John & Felix Musembi Muvengei [2020] KEHC 1163 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei - J

CRIMINAL (MURDER) CASE NO.25 OF 2020

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

VERSUS

ANTHONY MBINDYO NYAMAI...................................................1ST ACCUSED

FREDRICK MUNYUNZU MUSYOKI...........................................2ND ACCUSED

WILFRED MUTISYA MUNYAO.....................................................3RDACCUSED

FREDRICK MUASYA MUNYAO...................................................4TH ACCUSED

ANTHONY MUTUA MUTISO........................................................5TH ACCUSED

PAUL MUVENGEI ZACHARIA.....................................................6TH ACCUSED

FREDRICK MUTISO MUTUA.......................................................7TH ACCUSED

BENSON MWANZA MUNYAO.......................................................8TH ACCUSED

NOAH MUTISO MUVENGEI..........................................................9TH ACCUSED

SHADRACK MUTIO MUVENGEI................................................10TH ACCUSED

JACKSON MUTINDA JOHN..........................................................11TH ACCUSED

FELIX MUSEMBI MUVENGEI......................................................12TH ACCUSED

RULING

1. The accused persons, Anthony Mbindyo Nyamai, Fredrick Munyunzu Musyoki, Wilfred Mutisya Munyao, Fredrick Muasya Munyao, Anthony Mutua Mutiso, Paul Muvengei Zacharia, Fredrick Mutiso Mutua, Benson Mwanza Munyao, Noah Mutiso Muvengei, Shadrack Mutio Muvengei, Jackson Mutinda Johnand Felix Musembi Muvengeiwere jointly charged with the offence of murder contrary to sections 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 1st day of August, 2020 at Kathuma Village, Misakwani Sub-location, Mumbuni Location in Machakos Sub-county within Machakos County they jointly murdered Juliana Mwikali Ngui.

2. The court on 7. 10. 2020 noted that the mental assessment reports in respect of the 1st to 5th, 7th to 9th and 12th accused persons were fit to plead and resultantly the charges were read out to them in languages that they understood. They took plea on 7. 10. 2020 and denied the charges hence a plea of not guilty was entered. The plea in respect of the 6th and 11th accused was taken on 16. 10. 2020 when the court having considered the mental assessment reports dated 7. 10. 2020 and 8. 11. 2020 found that the said persons were fit to plead. They denied the charges and a plea of not guilty was entered on their behalf.

3. Miss Mwau represents the accused persons while Mr Mwinzi watches brief for the victim’s family and Mwongera represents the prosecution.

4. On record is an objection to the accused persons’ application for bond. It is deponed on 8. 9.2020 by Nelson Ngui Mutiso, one of the complainants and the husband to the deceased. It was averred that the accused persons if released would put the complainants at risk and that they were likely to abscond trial. It was revealed that the complainants are worried about their security and have sought protection from the Witness Protection Authority, which application awaits feedback. It was pointed out that the accused persons attempted to murder the deponent and that some of them even live with some of the witnesses hence the witnesses currently live in fear. The deponent averred that some of the complainants’ houses were burnt in the attack that led to the death of the deceased and that the accused persons were bent on eliminating the deponent’s entire family.

5. On record is an application dated 9. 10. 2020 seeking that the accused persons be granted bail/bond on reasonable terms and conditions as this court may deem fit pending trial. The application was supported by the affidavit of Anthony Mbindyo Nyamai who was indicated as having the consent of the other 8 accused persons to depone the affidavit. The consent was attached to the affidavit. It was averred that the deponent and the other accused persons had permanent places of abode. The deponent denied that the accused persons were threatening the complainants and denied that the accused persons are unwanted at the villages they reside. It was pointed out that there was no compelling reason to deny the accused persons bail.

6. The application was opposed vide replying affidavit deponed by Martin Mwongera. He averred that the accused persons may threaten the prosecution witnesses if released on bail and that the court was urged to exercise discretion subject to compelling reasons. Another replying affidavit was deponed by the investigating officer No.233330 C.I.P Charles Wanjohi who stated inter alia; that the accused person are close kin of the deceased, survivors and key witnesses and who have received threats from the accused persons; that the safety of the witnesses who are survivors is at risk as most of them have gone underground for fear of their lives; that the anger and emotions by members of public in the village is still high and thus the safety of the accused if released is not guaranteed; that the accused persons are likely to interfere with the witnesses if released on bond; that the seriousness of the offence and the severity of the sentence is an incentive for the accused to abscond if released on bond.

7. Miss Mwau submitted that it was not enough for the prosecution to allege that a serious offence warrants denial of bond. It was pointed out that there was no evidence that the accused persons would abscond or that the witnesses had been intimidated. It was submitted that the claim that there is tension in the village and that the accused may be lynched has not been substantiated. Counsel took issue with the pre- bail report that she termed as biased and which should not to be relied upon.

8. Mr Makau holding brief for Mwinzi for the family of the deceased invited the court to consider the case of R v Ochieng (2013) eKLR where it was stated that the huge number of accused persons would deter the witnesses from testifying. It was submitted that the pre-bail report spoke about the status of the lives of the community, the suspects and the environment which the families live.

9. Mr Mwongera for the prosecution submitted that the witnesses were in danger as the deceased was alleged to have practised witchcraft. It was pointed out that the witnesses were children of the deceased who witnessed the attack and that the court ought to allow the family members to testify before releasing the accused persons on bond.

10. In rejoinder, Miss Mwau submitted that some of the witnesses had been put under witness protection and thus there is no risk at all. She also submitted that some accused persons had contracted COVID- 19 due to contact with infected persons in detention and which warrants an order for their release on bail.

11. I have considered the application for bond as well as the rival affidavits. I have also considered the submissions of learned counsels plus the cases cited.  The issue for determination is whether the court may grant the accused persons bail and bond and on what terms.

12. The entitlement to bail is subject to compelling reasons by dint of Article 49(1) (h) of the Constitution. Nevertheless, the law is silent on what amounts to compelling reasons. In Hassan Mahat Omar & Another v Republic, Nairobi High Court Criminal Revision No. 31 of 2013, Lady Justice L.A Achode  rendered herself thus:-

"What amounts to compelling reasons as envisaged in Article 49(1) (h) of the Constitution is a matter of judicial discretion. Kenya does not have statutory guidelines to govern the granting of bail. However, a glimpse at pertinent laws of other common law countries such as the Bail Act of England and Section 60(4) of the Criminal Procedure Code of South Africa, gives us examples of issues to consider in determining whether or not compelling reasons exist in a given case."

13. In the Ugandan Trial on Indictments Act, exceptional circumstances are defined by section 15 (3) and additional factors are considered by section 15 (4) which are reproduced for ease of reference:

"(3) In this section, "exceptional circumstances" means any of the following-

(a)grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody;

(b)a certificate of no objection signed by the Director of Public Prosecutions; or

(c)the infancy or advanced age of the accused.

(4) In considering whether or not the accused is likely to abscond, the court may take into account thefollowing factors-

(a) whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda;

(b) whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;

(c) whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and

(d) whether there are other charges pending against the accused."

14. According to the Judiciary bail and bond policy guidelines it is indicated thus;

“4. 26The following procedures should apply to the bail hearing:

(a)The prosecution shall satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:

a.That the accused person is likely to fail to attend court proceedings; or

b.That the accused person is likely to commit, or abet the commission of, a serious offence; or

c.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or

d.That the accused person is likely to endanger the safety of victims, individuals or the public; or

e.That the accused person is likely to interfere with witnesses or evidence; or

f.That the accused person is likely to endanger national security; or

g.That it is in the public interest to detain the accused person in custody.

(b)The accused person shall be entitled to the disclosure of any information relied upon by the prosecution in objecting to bail, provided that there is no good reason for withholding such information, such as the protection of witnesses or the preservation of national security.”

15. What this court understands from the opposition to the accused’s grant of bail is the likelihood of the accused persons to threaten and interfere with witnesses some of whom are stated to be minors and others are close family members. The pre-bail reports also speak about the fact that there is a sense of calmness in the community after the accused were arrested and that the safety of the accused persons is also not certain in the community and that some of the witnesses reported vide OB:60/24/8/2020 that the 12th accused threatened them when they had attended the lower court over cases which arose out of this incident. It is reported that the 12th accused, a son to the 6th accused is a flight risk as he went into hiding and had to be tracked in Mombasa and thus he is unsuitable for bond. It was reported that the 1st accused deserved strict bond terms, if he were to be granted bail; that he owned 25 acres of land in Kibwezi. It was reported that the victims expressed trauma and hurt and that they did not feel safe.  It was reported that there was a feeling that the accused persons were out to accomplish a mission namely to kill the deceased’s family and if let out on bail, they may accomplish the mission. It was reported that there is tension in the community and that the 1st accused was not suitable for release on bail. In respect of the 2nd, 3rd, 4th, 5th, 7th, 8th, 9th and 11th accused persons, it was reported that the community was unhappy with the incident and hence they were not suitable for release on bail immediately.

16. I have considered the legal authorities including those cited by counsel for the victim. The Judiciary Bail and Bond Policy Guidelines have listed a number of factors to be considered by the court when making a decision whether or not to grant bail and bond; the same have been reproduced in paragraph 14 above. Various authorities have established the principle that the court must be satisfied that the applicant will appear for trial and not abscond. If facts come to light that there is a substantial likelihood of the applicant offending bail, it is advisable to reject the application. In Republic –vs- Danson Ngunya & Another [2010] eKLR, Makhandia J, (as he then was) stated that if the state wants the accused deprived of his right to be released on bond, then the State must satisfy the court that it would not be in the interest of justice to make an order granting bail/bond.

17. In the instant case I have considered the following factors: -

a) The need to give the applicants the full benefit of their constitutional rights and freedoms.

b) The apprehension that the applicants may cause lawlessness to society if released on bail.

c) Indication that there is a risk of the 12th Applicant absconding.

d) The fear that the Applicants may likely interfere with the course of justice as evidenced by the threat that was reported vide OB:60/24/8/2020.

e) The seriousness of the charges against the Applicants.

f) The fear that the Applicants may threaten violence against anyone in the village.

g) The fear that the Applicants are likely to interfere with the prosecution’s witnesses.

h) The Constitutional requirement that the Applicants must be presumed to be innocent until proved guilty or plead guilty.

i) The caution that bail should not be refused as a form of punishment for the Applicants.

j) The indication that the applicants and the witnesses live in the same community and that there is still hostility towards them as indicated in the pre bail reports.

k) Absence of concrete evidence that there are other charges pending against the accused persons.

All the above factors must be considered against the backdrop of Article 49(1)(h) of the constitution that guarantees the right of an accused person to be released on reasonable bail/bond pending a charge or trial unless there are compelling reasons not to be released. The Court of Appeal in the case of Michael James Oyamo & another v Republic (2019) eKLR adopted the definition of what amounts to compelling reasons as defined by the High Court in R V Jackton Malende and 3 others Criminal case No.55 of 2009 as follows:

“…the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the constitution.’’

It is therefore clear that the right to be released on bond is not absolute as the prosecution has an opportunity to challenge the release by presenting compelling reasons. Two affidavits have been filed in opposition to the release of accused persons on bond and further the County Probation officer Machakos has filed comprehensive pre-bail reports which confirm that the tension in the village is still high following the incident and that the issue of witness interference is real in view of the fact that the witnesses are relatives of the accused persons. I find that the prosecution has presented compelling reasons to justify denial of bond at this stage of the proceedings.

18. Considering all the foregoing factors I am inclined to reject the accused’s application for bail at this stage and direct that the same be renewed after the vulnerable witnesses have testified. Even though there is a claim that arrangements are being made to put some witnesses under the witness protection programme, no evidence was availed to show that indeed any such witnesses have been placed under such a programme. There is no doubt that there still exists some tension in the village and that the situation is exacerbated by the fact that the witnesses and the accused persons are members of one family and that it is prudent to first receive the evidence of the vulnerable witnesses before a decision is made to release the accused persons on bond due to the simmering tension on the ground. I am satisfied that compelling reasons have been advanced warranting a denial of bond at this stage of the proceedings until the vulnerable witnesses have testified and or evidence is availed to the effect that they have been secured under the witness protection programme. Thereafter the accused persons may be at liberty to renew their quest to be released on bond. The bail application lodged by the accused persons is hereby declined. The matter should now be set down for hearing on priority basis. To this end the prosecution is directed to supply to the defence all the requisite witness statements and documents sought to be relied upon in the trial within the next seven days. A hearing date in the matter to be fixed once the plea in regard to the 10th accused has been taken and if not possible the prosecution to isolate his case and to be consolidated afterwards. Matter is fixed for mention on 14. 12. 2020 to fix a hearing date and for further orders.

It is so ordered.

Dated and delivered at Machakos this 8th day of December, 2020.

D. K. Kemei

Judge