Republic v John Gatembo Mwangi [2018] KEHC 1579 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL CASE NO. 40 OF 2018

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

VERSUS

JOHN GATEMBO MWANGI...........................ACCUSED

RULING

1. The accused prays for bail pending trial.  The notice of motion is dated 5th December 2018.

2. The application is contested by the Republic.

3. There is filed a comprehensive pre-bail report dated 18th December 2018. Its summation is that the safety of the accused is notguaranteed.

4. Learned counsel for the accused challenged the report. She submitted that the accused is deemed innocent; and, that bail is guaranteed by the Constitution. She added that the accused is a father of three children; and, that he prays for release to adequately prepare for his defence.

5. The learned Prosecution Counsel submitted that the safety of the accused is not assured; and, that there are compelling reasons for denial of bail.

6. The accused faces the grave charge of murder; but he is still deemed innocent. Under Article 49 (1) (h) of the Constitution, he is entitled to bail pending trial unless there are compelling circumstances.  See Muraguri v Republic [1989] KLR 181, Republic v Elias Kipkemoi, Eldoret High Court Criminal Case 42 of 2014 (unreported).

7. The overarching objective of bail is to ensure the accused attends his trial.  Muraguri v Republic [supra]. Relevant matters to be considered by the court include: the nature of the charge; the likely sentence; previous criminal records, the views of the family of the victim, the possibility of interference with witnesses; the temptation to abscond; and, the safety of the accused.

8. The accused is charged for the unlawful killing of Mwangi Mirogu on 23rd October 2018 in Muchungucha Village within Murang’a County.

9. The social report concludes as follows-

“The locals are still hostile. His house was burnt down by members of the public. The villagers and local administration do not support his release…and may harm him if released. The victim’s family opposes his release….they fear he may intimidate the witnesses” [Ephasis added]

10. There is clearly palpable anger at the village home; and, possibility of a revenge. Furthermore, the Victims Protection Act 2014 requires the views of victim’s family to be taken into account at this stage.

11. I empathize with the accused. But I have reached the conclusion that his safety would be in jeopardy. That to me is a compelling reason not to release the accused on bail.

12. The application for bail is refused.

It is so ordered.

DATED, SIGNEDandDELIVEREDatMURANG’Athis 20th day of December 2018.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Accused.

Ms. Muritu for the accused.

Ms. Gichuru for the Republic.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.