REPUBLIC v JOYCE KATHAMBI SOLOMON, SAMSON MUIGAI NGURU & DAVID NJENGA KAHIU [2011] KEHC 2538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 20 OF 2010

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

VERSUS

JOYCE KATHAMBI SOLOMON.....................................................................................1ST ACCUSED

SAMSON MUIGAI NGURU..............................................................................................2ND ACCUSED

DAVID NJENGA KAHIU..................................................................................................3RD ACCUSED

RULING

David Njenga Kahiu, Joyce Kathambi Solomon and Samson Muigai Nguru are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. They are alleged to have murdered Peter Njogu Gachangi on the night of 6th and 7th February 2010. They denied the offence and have been remanded in custody.

On 21/2/2011, Mr. Mongeri Advocate, counsel for the 3rd accused/applicant filed a chamber Summons pursuant to Art. 49 of the Constitution seeking to have the applicant released on bond/bail pending trial. The grounds upon which the application is brought are found on the face of the application and the supporting affidavit of the applicant sworn on 21/2/2011. He depones that he is a married man with 3 children aged between 24 years and 14 years, he is the sole breadwinner as he used to work as a Truck Driver with Swift Royal Conveyors Ltd, his father is willing to stand surety for him, he will not interfere with witnesses. Mr. Mongare relied on the case of REP V. DANSON MGUNYA CR 26/08 where J. Ibrahim released an accused person charged with murder on bail contending that all that the applicant had to show was that he will attend court when required to do so. He submitted that no evidence has been adduced to show that the applicant will abscond or likely to interfere with witnesses.

Mr. Nyakundi, learned State Counsel, opposed the application for reasons that the evidence so far tendered incriminates the applicant, he will be tempted to abscond, the offence is serious and he is also likely to interfere with witnesses.

Art. 49(2) of the Constitution gives the court discretion to grant bail in all cases where an accused is charged with an offence punishable by fine alone or imprisonment for a period not exceeding 6 months. These may be referred to as the party loses. However, under Art. 49(1) (h) the right to bail is not absolute. Bail may be denied where there are compelling reasons not to grant bail. The said compelling reasons are not provided for anywhere but the courts have made decisions setting out what they believe to be compelling reasons. The court the creteria in REP V MGUNYA MSA CR 26/08and NKU CR 115/08, REPUBLIC V KABULIT.

This is a serious case of murder which carries a sentence of death upon conviction. This matter is partly heard with 5 witnesses having testified and the 6th stood down for want of time. Though Mr. Nyakundi submitted that there is already evidence incriminating the applicant and he is likely to abscond, that is not the position. Even though that could be one of the grounds to be considered, the applicant is still presumed to be innocent till proven otherwise.

Though the applicant did not disclose where he resides, he has demonstrated that he is a family man with a wife and children, his father is ready and willing to stand surety for him. As pointed out earlier, the prosecution has not demonstrated that the applicant is likely to interfere with witnesses. I find that there are no compelling reasons to deny the applicant bail and I hereby grant the application.

The applicant be released on bond of Kshs.500,000/- with 2 sureties of like sum. The applicant is warned not to interfere with any of the witnesses. He will attend court every 14 days for mention until further orders of this court.

DATED and DELIVERED this 13th day of April 2011.

R.P.V. WENDOH

JUDGE

PRESENT:

Accused/applicant present – in person.

Nyakundi for the State.

Kennedy – Court Clerk.