Republic v Irene Mbithe Kimunyu & Catherine Kutila Muthama [2016] KEHC 3372 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT NAIROBI

CRIMINAL CASE NO. 20 OF 2016

LESIIT, J

REPUBLIC …………….……………………..…….….PROSECUTOR

V E R S U S

IRENE MBITHE KIMUNYU………...….……….……....1ST ACCUSED

CATHERINE KUTILA MUTHAMA…….…….….……..2ND ACCUSED

R U L I N G

1. The 1st and 2nd accused persons are charged with murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya.

2. The particulars of the offence are that on the night of 24th / 25th February, 2016 at Kwangure Estate in Embakasi Sub-County within Nairobi County they jointly murdered Brian Kibet Kipngetich.

3. The 1st accused has sought bail pending his trial through his counsel Mr. Kariuki while the 2nd accused has sought bail pending trial through his counsel Mr. Kibathi. Both Counsels urged that bail is a constitutional right and that the court should release the accused persons on reasonable conditions. They undertook to abide by those conditions and any other condition the court would impose on them.

4. Ms. Njuguna Learned Prosecution Counsel representing the State opposed both applications and relied on the affidavit sworn by the Investigating Officer P.C Kanai dated 13th June 2016. The grounds upon which the applications are opposed are that the lives of both accused persons were at risk.  The Investigating Officer explained that the accused were arrested by members of the Public who wanted to lynch them at the time.  He averred that their release would trigger the fury of the area residents in Kayole where they were arrested and that they may in turn harm or even kill them.

5. Ms Njuguna argued that the accused persons were a flight risk and hence should be denied bail.  Counsel urged that the 2nd accused did not indicate any fixed abode in her affidavit.

6. Ms Njuguna urged that the sentence the accused were likely to face if convicted was severe and that it may motivate them not to appear for their trial.

7. I have considered the application by the Counsels for the 1st and 2nd accused persons as well as the objection by the Prosecution Counsel.

8. There is no dispute that bail is a right to all persons charged before court irrespective of the charge facing them.  The only rider under Article 49(1)(h) which gives rise to thought is that bail should be denied if there is exists compelling reasons not to release an accused person on bail.

9. The principles applicable in an application for bail pending trial were considered in the case of Ng’ang’a vs Republic 1985 KLR 451 where Hon. Chesoni J, as he then was held:

1. “The court, in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (cap 75), should grant bail to the accused person unless it is shown by the prosecution that there are substantial grounds for believing that:

i. The accused will fail to turn up at his trial or to surrender to custody;

ii. The accused may commit further offences; or

iii. He or she will obstruct the course of justice.

10. The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial.   In making this consideration, the court must consider;

i. The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;

ii. The strength of the prosecution case;

iii. The character and antecedents of the accused;

iv. The likelihood of the accused interfering with prosecution witnesses.”

11. The first accused person is aged 38 years. A Pre Bail report was prepared on her by a Probation Officer at Milimani Courts Nairobi. That report shows that the accused was of poor health having undergone two subsequent operations notably a caesarean and a corrective operation. The accused suffered from both physical and mental ailments as a result of the operations. She complains of severe headaches and hallucinations. She also complains of hearing voices of a man and a baby talking to her. It was clear from the report that the accused is suffering from postpartum depression. The report indicates that the 1st accused requires treatment and her family is willing to assist her in this aspect.

12. The Probation Officer’s Report also shows that the family of the accused No. I are willing to stand surety for her if released on bail.  On the other hand the family of the father of the deceased do not oppose the release of both accused on bail.

13. The second accused person is 23 years old and a mother of a child of six years. A Pre-Bail report prepared by Probation Officer shows that the 2nd accused may have been an innocent victim of circumstances for having accommodated the 1st accused person in her house without knowing that she was mentally unwell. The report recommends that she be given favorable bond terms as her family was willing to meet them and to ensure that she attends court when needed to.

14. I have considered the replying affidavit by the Investigating Officer P.C Kanai dated 13th June, 2016 and together with the Pre-Bail reports on both accused persons by Ms. Ayuma Agnes Otukho, the Probation Officer.

15. Denying bail to an accused person is a serious matter as it denies them their liberty.  That right is not absolute.

16. The grounds upon which it can be denied as mentioned earlier include compelling reasons shown on such basis as threat to witnesses’ safety or interference of witnesses or their intimidation.  The burden lies with the prosecution to establish any compelling reasons why bail should be denied upon cogent and reasonable grounds.

17.  Both counsel for the accused persons urged that no compelling reasons have been shown by the Prosecution and in the said affidavit to deny bail. Counsel for the 1st accused urged that it is only the court that could determine whether there was strong evidence after hearing the case. He urged that the 1st accused was not a resident of the area where the offence occurred but came from Yatta in Machakos County, where she would reside once released where there was no evidence of hostility by the area residents towards her. Counsel urged that the 1st accused was therefore not a flight risk as she had a fixed abode and it was not difficult to trace her home.

18. Counsel for the 2nd accused argued that no compelling reasons to deny her bail were given by the Prosecution. She urged that the 2nd accused was not a flight but was an ordinary Kenyan who came from a family with strong ties which had come to show her support I court. He urged that the 2nd accused would relocate to Mbiuni in Machakos County where her family resided and she would attend court when needed.

19. The affidavit by the Investigating Officer indicates that the accused are a flight risk.  No substantiation is given.  The accused have shown that they do have fixed places of abode where they come from.

20. It has been claimed that the lives of both accused may be at risk.  That factor is substantiated on the basis that the arrest of both accused was effected by residents of the area where the incident occurred.  Further that the matter was widely reported in the media.

21. I find that due to the medical condition of the 1st accused who is said to require treatment urgently, and based on the fact that there is no demonstration of any hostility against the accused persons as to prevent their release, I will grant both bond on the following terms:

1. Each to be released on a cash bail of Kshs. 50,000/-.

2. In the alternative, each accused may be released on a bond of Kshs. 250,000/- with a surety each of the same amount.

3. The accused persons should not set foot in Kwangure Estate or its environs where this incident took place.

4. The accused persons should also not reside in the same area to avoid conflict during the pendency of this case.

5. They should keep peace between themselves and also between themselves and those affected by the death of the deceased including the deceased’s father.

6. The accused must disclose the place where they will be residing before they are released.

22. In the result, I find there is merit in the accused persons application for bail and the same is accordingly granted.

DATED, SIGNED AND DELIVERED THIS 6TH DAY OF SEPTEMBER, 2016.

LESIIT, J

JUDGE