Republic v Justus Munyua Mwasya [2017] KEHC 1177 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL CASE NO. 7 OF 2017 (MURDER)

REPUBLIC.............................................................PROSECUTION

VERSUS

JUSTUS MUNYUA MWASYA.........................................ACCUSED

R U L I N G

1. This is the application dated 22/09/2017 seeking for bail pending hearing and determination of the case. The grounds relied on in the supporting affidavit is that the applicant is likely to remain in custody for a long time before the case is finalized.  It is stated that the applicant who faces a charge of murder has been in custody since the date of arrest. He pledges to abide by any terms and conditions that this court may impose including court attendances at all times when he is required.  It is also stated that the accused has a fixed abode and is unlikely to abscond.

2. The application was opposed by the State relying on the affidavit of Beatrice Manyal the prosecution counsel in this case.  It is deposed that the applicant ran away after the incident and police used a lot of effort to trace him after which he was arrested 13 days later.  If he is released on bond the applicant is likely to interfere or tamper with evidence.  He has called the eye witness one Justa Karimi Njue through phone before he was arrested and threatened of dire consequences if she recorded a statement with the police.  The witness fears for her life.

3. The respondent states that the applicant has no fixed abode since he was only doing casual labour in Embu town before the incident and is believed to originate from Mwingi. Considering the seriousness of the offence, the applicant is unlikely to attend court if released on bond.

4. Article 49(1) (h) of the Constitution provides that 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.

5. The paramount consideration in an application of this nature is to secure the attendance to court of the applicant.  Although the applicant states that he has a fixed abode, he has not given any details of where he comes from or where he was staying before he was arrested.  He has not stated his former occupation before arrest.  However, the prosecution states that the applicant was a casual labourer in Embu town before he was arrested.

6. This information was not controverted by the applicant and should therefore be correct.   If the applicant had a fixed abode, he should  have given the details of his residence or that of his parents whatever the case maybe.  The location of his home is also an important aspect in showing that he has a fixed abode.  It is not in the interests of justice for the court to release a person who may not be traced should he abscond.

7. It is alleged that the applicant disappeared after the commission of the crime and was only to be arrested 13 days later with a lot of effort. The applicant did not challenge this information thus confirming the truth of the said averment. This escape negates the trustworthiness of the applicant if he was to be released on bail.

8. It has not been denied that the applicant threatened the key witness at the time he was at large.  If he is released on bond, there is a great probability that he will repeat it again or even cause harm to the witness in order to destroy evidence.  The said witness is the only eye witness in this case according to the prosecution.  It would be appropriate that the evidence of this witness is preserved and her life protected.

9. It is my finding that the reasons given by the prosecution for threatening the key witness and having no fixed abode are compelling reasons for not releasing the applicant on bail.

10. I find the application not merited and dismiss it accordingly.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF DECEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Migwi for Applicant

Applicant present