Republic v Gichuru [2022] KEHC 16015 (KLR)

Republic v Gichuru (Criminal Case E037 of 2022) [2022] KEHC 16015 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16015 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case E037 of 2022

MM Kasango, J

December 1, 2022

Between

Republic

Prosecution

and

Simon Miringu Gichuru

Accused

Ruling

1. Simon Mirungu Gichuru was on October 27, 2022 arraigned before this court charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He pleaded not guilty. He applied to be released on bond/bail pending the conclusion of his trial. The deceased he is alleged to have murdered was his wife. They were blessed with three children in that marriage. All the three children are under 18 years and are in school.

2. Even thought he accused is facing a murder charge which can attract death sentence, the same is bailable. He has a conational right to be released on bail. This indeed is an inalienable right which is only constricted by compelling reasons why bail should not be granted.

3. There is before me the pre-bail report of probation and the children’s officer’s report.

4. It is noteworthy that one of the accused children, who is 15 years old is a persecution’s witness in this murder trial. He is therefore due to testify against his father. Article 53(2) of the Constitution provides:-“a child’s best interest is of paramount importance in every matter concerning the child.”

5. In discussing what constitutes interest of a child, the canadian case Director and B2014 BCPCC III (CanLII) stated thus:-“(a)the child's health and emotional well-being;(b)the child's views, unless it would be inappropriate to consider them;(c)the nature and strength of the relationships between the child and significant persons in the child's life;(d)the history of the child's care;(e)the child's need for stability, given the child's age and stage of development;”

6. The interests, therefore of the accused’s children and more particularly the one who shall testify in the murder trial ranks higher than the interest of the accused. There is in this scenario a high probability that the accused who is that child’s father may interfere with that child to influence the evidence he will give. Interreference of the prosecution’s witnesses undermines the criminal justice system and dents the integrity of the criminal process. See Republic v Robert Kipkorir Tonui Bomet High Court criminal case No E001 of 2020.

7. The children’s officers report reveals that after the death of their mother and the incarceration of the accused the three children first were taken by the maternal grandmother but presently they are staying with their aunt. The report noted the children are happy staying with their aunt. The aunt has arranged for them to attend counselling following the trauma of losing their mother. That aunt has sought the children’s transfer from the schools they were attending. The aunt has found another schools which are within the vicinity of their present residence. The report concluded.“from the above observation, the children seem comfortable at their maternal relatives. T he children’s office Kabete therefore recommends that in the best interest of the child, the children continues staying with their maternal grandmother…”

8. It is clear from that report that children are not in need of care and protection. They are presently well cared for.

9. It follows that because there is one child who shall testify in the murder case and in order to ensure his evidence is not interfered with, this court declines to grant the accused bail as sought. The accused shall be remanded in custody during his pending trial.

RULING DATED and DELIVERED at KIAMBU this 1stday of DECEMBER, 2022. MARY KASANGOJUDGEIn the presence ofCoram:Court Assistant : Mourice/JuliaAccused Simon Miringu Gichuru :- presentFor accused : - Mr. KamuiruFor State :- Mr. GachariaRULING delivered virtually.MARY KASANGOJUDGE