Republic v Indiana [2022] KEHC 13550 (KLR)

Republic v Indiana (Criminal Case E002 of 2021) [2022] KEHC 13550 (KLR) (Crim) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13550 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E002 of 2021

DO Ogembo, J

October 3, 2022

Between

Republic

Prosecutor

and

Jackline Mumuli Indiana

Accused

Ruling

1. The applicant Jackline Mumuli Indiana, has petitioned this court, vide a Notice of Motion application dated March 30, 2022 to be released on bail pending the hearing and determination of her case. It has been submitted that the applicant is not a flight risk and shall attend court at all times. And that as an accused person, she is presumed innocent till proved otherwise.

2. The prosecution has opposed this application on the basis that are compelling reasons which would justify denial of bail. First, that there likelihood that she would interfere with prosecution witnesses, with whom she stayed. That she is likely to intimidate or influence and interfere with the witnesses who are all relatives.

3. Secondly, that the accused has no place of abode and has not disclosed where she would stay if she is to be released. Lastly, that this is a serious offence and the prosecution has a strong case which could be an incentive for absconding.

4. And is a further response, it was submitted that it has not been demonstrated that the applicant will interfere with the witnesses. Also that the applicant intends to seek an alternative place of abode. And that it is only after the evidence is taken that the strength of the case of prosecution may be known.

5. I have considered the submissions made by the parties on this application. Under article 49 (1) (h)“An arrested person has the right To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

6. The above constitutional provision guarantees the right to bail to all accused persons. The said right, may however, be denied should the prosecution prove the existence of any compelling reasons. In our instant case, the prosecution has claimed the existence of at least 4 compelling reasons i.e likelihood of interference with the prosecution witnesses, strength of the prosecution case, likelihood of absconding and the fact that the applicant has no fixed abode.

7. The constitutional provision seen above demands that the prosecution specifically prove the existence of such compelling reasons. Handling this issue, the Hon Lesiit J (as she then was) in the case of Republic Versus Richard David Alden (2016)eKLR, held in part:“For the prosecution to succeed in persuading the court on this criteria (of interference), it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses;”

8. I dare say that the same standards would apply even on objections based on likelihood to abscond. With much respect, the prosecution in objecting to bail herein has not shown any direct or indirect threat to interference with the witnesses. Neither have they shown or proved any likelihood of the accused absconding. As to the strength of the prosecution’s case, of course this case is yet to he heard and the court is not in any position to make any conclusions as to the strength or otherwise of the case of the prosecutions. This ground, on its own can therefore not amount to a compelling reason.

9. I am therefore not convinced that the prosecution has sufficiently shown the existence of any compelling reason that would justify the denial of the right to bail to the accused. I accordingly dismiss the objection of the prosecution and I order that the accused may be released on bail on the following terms.i.A bond of Ksh 2 million with 1 surety of a similar amount.ii.In the alternative a cash bail of Kshs 200,000/=iii.If released on bail, the accused is ordered never to contact and or interfere with any of the prosecution witnesses either directly, or indirectly by proxy, till this case is determined.iv.The accused ordered to attend court at all times as shall be ordered from time to time till this case is determined.Orders accordingly.

D. O. OGEMBOJUDGEOCTOBER 3, 2022. Court:PARA 10. Ruling read out in open court in the presence of both accuseds, and Ms. Kimani for state. Counsel for the accuseds is absent.D O OGEMBOJUDGEOCTOBER 3, 2022.