Republic v David Ngatiawahito, Samuel Wanjohi Kihara & Samuel Gitonga Ngangari [2017] KEHC 3224 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL  CASE NO. 7  OF 2017

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

VERSUS

DAVID NGATIAWAHITO................................1st ACCUSED

SAMUEL WANJOHI KIHARA......................2nd ACCUSED

SAMUEL GITONGA NGANGARI..................3rd ACCUSED

RULING

1. DAVID NGATIAWAHITO (WAHITO), SAMUEL WANJOHI KIHARA (KIHARA)andSAMUEL GITONGA NGARARI (NGARARI)stand jointly charged with the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code. They pleaded not guilty and they now await their trial. While awaiting their trial they have applied for bail.

2. The probation office provided a pre-bail report on each one of them.

3. Wahito who is 38 years old is married to two wives. He has six children. He supports his family through his motorcycle (bodaboda) business. The pre-bail report is positive for his release on bail. The report notes that Wahito has a fixed abode and that the community at his area of residence is willing to have him back because he poses no danger to them.

4. Kihara is 32 years old. He is married with three children Kihara supports his family through his boda boda business. The community where he has his fixed abode is receptive to his release on bail.

5. Ngarari is 35 years old. He is separated from his spouse. He lives on his father’s land. The community aroundthe area of his residence is receptive to his release on bail.

6. Their Learned Counsels, Ms.Thungu and Mr. Theuri submitted that the three applicants have constitutional right to bail as set out in Article  49 (1) (h). That  Article provides:

“An arrested person has the right –

(a) ………....

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

Learned Counsels also referred the court to the presumption of innocence of an arrested person articulated under Article 50 (2) (a) of the Constitution. That Article provides:

“Every accused person has the right to a fair trial which includes the right –

(b) to be presumed innocent until the contrary is proved.

7. The Constitutional provisions referred to by the Learned Counsels give arrested persons a qualified right to be released on bail on reasonable terms. In other words the right to bail is not absolute.

8. In my consideration of the pre-bail probation reports I find no compelling reasons to deny the applicants bail. That being so I order as follows:

(a) DAVID NGATIAWAHITO, SAMUEL WANJOHI KIHARA and SAMUEL GITONGA NGARARI shall be released on bail pending their trial on their own bond of Ksh. 500,000 and two sureties of Ksh. 500,000 for each oneof them.

Dated and Delivered at Nanyuki this 4th OCTOBER 2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

1st Accused:  David  NgatiaWahito

2nd Accused: Samuel  WanjohiKihara

3rd Accused: Samuel Gitonga Ngarari

For state:.............................................

For accused:......................................

Language ..........................................

COURT

Ruling delivered in open court

MARY KASANGO

JUDGE