Republic v Chrispo Mamithi Therere [2017] KEHC 2373 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT CRIMINAL CASE NO. 4 OF 2017

REPUBLIC.............................................................RESPONDENT

V E R S U S

CHRISPO MAMITHI THERERE............ACCUSED/APPLICANT

R U L I N G (BAIL)

On 18/8/2017 the accused person herein CHRISPO MAMITHI THERERE was charged with the offence of murder c/s 2013 as read with s.204 of the Penal Code.  The particulars are that on 10/8/2017, at Gathuthi village Rititi Sub location Ngandu Location Mathira West sub county Nyeri County within the Republic of Kenya he murdered Joseph Therere Maitei by stabbing him with a panga.

He pleaded not guilty to the charge and applied for bond pending trail as is his constitutional right under Article 49(1)(h) of the Constitution.  The only bar to the release on bond is the existence of compelling reasons.

I ordered for a pre bail report (PBR) which was filed by Mrs. L.W. Njue the sub county probation officer and I noted on 19/9/2017.

Upon receipt of the PBR, the prosecution filed an affidavit through No.68823 Zakayo Anjachi, the investigating officer in this case, objecting to the release of the accused on bond/cash bail on the grounds that he, the investigating officer had reason to believe that if released the accused would interfere with, and /or threaten the witnesses. Further that the accused person posed a threat to the community and to himself. On these grounds the prosecution sought to have the accused remanded in custody until the final determination of this case.

The state counsel submitted further that the pre bail report was misleading with regard to the facts of the case.  That the mother to the accused gave a positive report about the accused person, her son, only because the accused person had done the family a favour by murdering her husband with whom she had sour relationship.

Mr. Gathiga for accused submitted that the pre bail report indicated that the community was willing to have the accused back and a surety was even available, the accused persons’ uncle, a brother to the deceased was ready to bail him out.

I have carefully considered all the submissions, the pre bail and the affidavit by the investigating officer.

It is not in dispute that the father of the accused was killed on 10/8/2017.  The accused person is the suspect who was arrested and charged.  A cardinal principal of our criminal justice system is the presumption of innocence until proven guilty.  The circumstance of the offence as narrated to the probation officer are the accused person’s side of the story.  They are not the evidence in this case.  The prosecution still bears the onus to prove the case beyond a reasonable doubt.

The concern about the interference with witnesses is a serious one, I believe and genuine taking into consideration that the offence allegedly happened within a family setting, and family members could become difficult witnesses. However, it has been raised in a rather pedestrian manner as just a general averment in the affidavit. It is without any detail as to which witnesses, how and whether any of them have expressed any fears of feeling threatened by the imminent release of the accused person.

The assistant chief of the area where the accused person comes form was among those interviewed for the pre bail report.  He is not a member of the family. He raised no concerns about the security of the accused or that of the community or the accused being a threat to the community.  In any event the accused person was found to be of good mental status, there is no explanation why he would be a threat to himself.

Without concrete compelling reasons it would be difficult to deny the accused person his constitutional right to bail.

It is however not an absolute right and the prosecution have the right to come back to court and ask for the same to be withdrawn or cancelled should the accused person violate the terms.

I find therefore that compelling reasons have not been sufficiently established to warrant the denial of bail to the accused pending his trial.

I allow the application for bail in the following terms:

1. Bond of Ksh. 500,000/= with one surety of similar amount

2. The accused person not to interfere with any of the witnesses in this case. The prosecution is at liberty to raise this issue should they have sufficient ground.

3. The accused person to attend court at all times both hearing and for mentions as directed.

Right of appeal 14 days.

Dated, delivered and signed in open court at Nyeri this 1st day of November 2017.

Teresia Matheka

Judge

In the presence of:

Court Assistant Harriet

Ms. Jebet for State

Accused person

Mr. Muthee for accused person

Hearing 24/1/18 and 1/2/2018

Mention before the Deputy Registrar on the 1/12/2017.

TERESIA MATHEKA

JUDGE