Republic v Ezekiel Saitabu Nakola & Monicah Muthoni Mwangi [2017] KEHC 2004 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL CASE NO 15 OF 2017

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

VERSUS

1. EZEKIEL SAITABU NAKOLA

2. MONICAH MUTHONI MWANGI........ACCUSED

R U L I N G

1.  The Accused persons herein, Ezekiel Saitabu Nakola and Monicah Muthoni Mwangi, are charged with murder contrary to section 203 as read with section 204 of the Penal Code.  It is alleged in the information dated 13th April 2017 that on 20/03/2017 at Karega Sub-location in Kigumo Location of Kigumo Sub-County within Murang’a County, they jointly murdered one Grace Wangari Mwangi.On 28/04/2017 they both pleaded not guilty to the charge.  Their trial is scheduled to commence on 19/12/2017.

2.  The 2nd Accused Monicah Muthoni Mwangi has applied by notice of motion dated 09/05/2017 to be admitted to bail pending her trial.  The Republic has opposed the application by a replying affidavit filed on 23/10/2017.  It is sworn by one Corporal Richard Katui, the investigating officer of the case.

4.  Bail is opposed upon the following grounds –

(a)    The 2nd Accused’s own safety.  It is stated in the replying affidavit that the Deceased’s family is very bitter with the 2nd Accused and if released on bail emotions may be stoked and her safety may not be guaranteed.  It is further stated that the murder is still fresh in the minds of the local community and that they do not want her in their midst.

(b)  Interference with witnesses; that if released on bail the 2nd Accused may interfere with witnesses.

5.  I have considered the submissions of the learned counsels appearing.  Bail pending trial is now a constitutional right for all offences that will be denied only for compelling reason.  Such bail must also be on reasonable terms.  See Article 49(1) (h) of the Constitution of Kenya, 2010.

6.  Compelling reason is a matter of evidence to be adduced by the prosecution.  The court may also infer such compelling reason from the circumstances of the case.

7. To begin with, there is only the investigating officer’s say-so about the view of the Deceased’s family and the local community regarding hostility towards the 2nd Accused that could lead to her harm.  It would have been useful to have one or two affidavits from individuals in each group.

8. Secondly, her own safety if released on bail must be uppermost in the 2nd Accused’s mind, and it must be assumed in her favour that if released on bail she would take appropriate steps to ensure her safety, including, if necessary, residing elsewhere.

9.  All that notwithstanding however, I have read the witness statements and other documents supplied to the Accused persons and to the court by the prosecution.  I note that the 2nd Accused was the Deceased’s daughter-in-law as she is married to one of the Deceased’s sons.  I also note that they lived in the same compound.

10. I further note that most civilian prosecution witnesses are the Deceased’s sons (including the 2nd Accused’s husband) and also a ten-year-old child of the 2nd Accused.

11. I consider that the possibility of interference with prosecution witnesses by the 2nd Accused is not far-fetched.  This is a compelling reason to deny her bail for the time being.

12.  I therefore refuse the 2nd Accused’s application for bail for now.  The application may be re-newed at an appropriate time in the future.  It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 10TH DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANGA THIS 10TH DAY OF NOVEMBER 2017