Republic v Benson Omamo Musimbi [2022] KEHC 2418 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. E039 OF 2021

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

VERSUS

BENSON OMAMO MUSIMBI..................................................................ACCUSED

RULING

1.  BENSON OMAMO MUSIMBI is charged with offence of murder.  He pleaded not guilty and his trial is yet to commence.  He has applied to be released on bail pending his trial.

2.  The pre-bail probation report presented to the court concluded as follows:-

“CONCLUSION

Your honour before court is a 24 year old man married with one child whose nationality is shrouded in mystery and depends on casual jobs for living his mother is deceased and father resides in Uganda and cannot be traces.  The wife’s  understanding of his background information is scanty and cannot be relied upon.

He is a flight risk since his permanent place of above is not known.  Due to the magnitude of the case, his safety and wellbeing would be highly compromised if released.”

3.   The accused, as the afore stated report revealed, is not known by the local administration and the community of the area where he worked before his arrest.  The community believes the accused is a Ugandan nationality.

4.   I have considered the affidavit of Illbert Mukuria, an advocate of the High Court dated 30th November, 2021.  This Court is unable to place any reliance on what the said learned advocate deponed because in his response to the probation report he stated that the accused enjoys close community and family ties, the learned advocate failed to state the source of that positive information he gave of the accused.  For that reason, his depositions are rejected.

5.   I am aware that Article 49(1)(h) of the Constitution provides that there is right of an arrested person to be released on bail/bond on reasonable conditions, pending either trial or charge unless there are compelling reasons not to be released.  The main function of granting bail/bond is to ensure the presence of an accused at trial.

6.   The accused is facing a serious charge, which if found guilty will attract severe punishment.  With that in mind, and because the nationality of the accused at this stage is not clear and that the probation pre-bail report indicates accused is a Ugandan national, I decline to grant the accused bail.  I make reference to the case PETER KINYANJUI WAINAINA VS. REPUBLIC (2021 eKLR:-

“10. InREPUBLIC V JOHN KAHINDI KARISA & 2 OTHERS [2010] eKLR, Ibrahim J(as he then was) observed:

“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.”

7.   At the reading of this Ruling the court will give a priority hearing date of this case.

RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022.

MARY KASANGO

JUDGE

CORAM:

COURT ASSISTANT: MOURICE

ACCUSED: BENSON OMAMO MUSIMBI : PRESENT

FOR ACCUSED: - MR. MUKURIA

FOR DPP: MR. KASYOKA & MR. BENJAMIN

COURT

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE