Republic v Joseph Simiyu Constant [2019] KEHC 3669 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO. 9 OF 2019

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

VERSUS

JOSEPH SIMIYU CONSTANT.......................................ACCUSED

RULING

1. The accused Joseph Simiyu Constant is charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that he killed Melisa Simiyu and Venesa Simiyu on 22nd January 2019 at Shauri Moyo in Kamukunji sub-county within Nairobi County. He pleaded not guilty to both counts.

2. He has filed a Notice of Motion dated 20th May 2019 seeking to be admitted to bail/bond pending the hearing and determination of this case. He relies on the grounds found on the face of the Notice of Motion and on the supporting affidavit sworn by Rosalind Waweru an advocate from the firm of Mungunu Mburu & Associates Advocates which firm has the conduct of this case.

3. The accused has argued through his counsel that his health is deteriorating after he ingested some poisonous substances that have adversely affected his health and that he is not able to get proper medical care while in remand. He argues that the case has been given hearing dates in October 2019 and that although he has offered to enter into a plea bargain agreement this offer has not been accepted. He promises to abide by the conditions of bail/bond that this court may set. He  states that he has a fixed abode in Shauri Moyo Nairobi where he operates water vending and boda boda businesses. He promises not to interfere with witnesses.

4. Mr. Mburu for the accused urged that the prosecution has not provided compelling reasons to make this court decline to grant this application. He argued that the prosecution has not provided compelling evidence to show that the accused will interfere with witnesses or that the accused will commit suicide if released.

5. The application is opposed by the prosecution. Basing their grounds of opposition on the Replying Affidavit sworn by Police Constable Frasto Gesengi, the prosecution argued that the accused faces two counts of murder; that the civilian witnesses are neighbours of the accused and that there is likelihood that he will interfere with them or influence their evidence; that the key witness who is the wife to the accused fears for her life if the accused is released. It was further argued that the evidence against the accused is overwhelming and this may induce him to flee the jurisdiction of this court. It was further argued that the accused may attempt to commit suicide if released.

6. Before giving its ruling this court called for a probation report. It has taken long to have the report filed and no explanation being offered as to reasons for this. This court directed that the court would proceed to make a ruling the report from the probation officer notwithstanding.

7. I have considered this application. It is trite that bail/bond is a right guaranteed by the Constitution but this right is not absolute as it can be denied where there are compelling reasons. Among the reasons for opposing this application that the prosecution has advanced is that the accused may attempt to commit suicide if released on bail. That the accused had attempted suicide is not denied by the defence. In the certificate of urgency filed together with the Notice of Motion, the first reason given for seeking to have this application heard on priority basis is that the accused ingested some poison named as Triatix and Pedlam. The same is repeated in paragraph (c) of the grounds in support of the application and also paragraph 7 of the supporting affidavit although I note that in the affidavit it is not disclosed which drugs he ingested.

8. I also note that the accused runs a water vending business in Shauri Moyo where he resides. The civilian witnesses are his neighbours.

9.   I have given this matter great care and consideration. It is my view that the wellbeing of the accused cannot be guaranteed if he is released on bond. For this reason, and my discomfort on the issue of his neighbours being witnesses, I decline to allow this application. The health issues of the accused can be addressed when he is in custody. I note that this matter has hearing dates in October 2019. Once the evidence of these witnesses has been received by this court then these orders can be reviewed.

10. Consequently, I decline to grant this application. The accused shall remain in custody pending the hearing of this case or until the evidence of the witnesses named in paragraph 8 above is received.

11. Orders shall issue accordingly.

Dated, signed and delivered this 26th day of June 2019.

S. N. Mutuku

Judge