Republic v Maunde [2023] KEHC 26247 (KLR)

Republic v Maunde (Criminal Case E007 of 2023) [2023] KEHC 26247 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26247 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Case E007 of 2023

F Gikonyo, J

December 6, 2023

Between

Republic

Prosecutor

and

James Machoka Maunde

Accused

Ruling

Bond/Bail Application 1. Mr. Masoloi counsel for the accused orally applied for the release of the accused on reasonable bail terms. He argued that the accused is not a flight risk, innocent until proven guilty, and has been in custody since July.

2. The prosecution opposed the release of the accused person herein on bail.

3. According to the affidavit filed by the prosecution- sworn by PC Jared Oyaro on 04. 10. 2023 and filed on 29. 08. 2023, the following is a compelling reason not to release the accused on bond, to wit: -i.Flight risk- it took the DCI more than one month to track and arrest the accused while employing necessary resources. The accused was arrested on 07. 07. 2023 at around 1500 hours at his hideout within the Kanyenya sub-county in Kisii town. The accused does not have a specific place of abode or ancestral home where he stays is not known.ii.Witness interference -the accused while in hiding was threatening key witnesses. The investigations found the other key suspects who are still at large and efforts to arrest them are ongoing based on the crucial and irrefutable evidence obtained during the investigations and they are all close associates of the accused. The accused, if released, will interfere with investigations and witnesses in that he interacted significantly with potential prosecution witnesses in a bid to establish a false alibi for himself for transporting PC Makokha and another to the deceased wife’s place on the date of the incident, at his own cost by his own means of transportation and as such they are apprehensive that should he be granted bond he shall influence the now known prosecution witnesses. Given that he concealed and hid the suspected murder weapon in his car where it was later recovered before his arrest. The state is apprehensive that if released on bond the accused may interfere with ongoing further investigations into the case so that his accomplices will not be arrested. The accused should be denied bond until the very close accomplices are arrested, and charged and key prosecution witnesses testify thereafter the bail and bond can be reviewed.iii.The accused did not file any replies.

Directions of the court. 4. This court directed that ODPP file and serve submissions on compelling reasons in 14 days. The defense is to file theirs in 7 days. The defense has not filed any replies. Both parties have not filed written submissions.

Analysis and Determination Right to bail 5. All persons charged with a criminal offence are entitled to be released on bond on reasonable conditions except where there is a compelling reason not to be so released (art. 49(1)(h) of the Constitution of Kenya, 2010). This is based on the right to be presumed innocent until the contrary is proven (R. vs. Richard David Alden(2016) eKLR.)

Compelling reason and burden of proof 6. The onus of proving compelling reasons under Article 49(1)(h) of the Constitution lies with the prosecution- these are reasons that justify the limitation of the right to liberty in the context of Article 24 of the Constitution.

Objective of bail 7. The overarching objective of bail is to ensure the accused gets his liberty but also attends his trial. However, in granting bond the court should ensure that the accused does not prejudice the trial (Muraguri v Republic).

Grounds for objecting bond 8. The prosecution cited two grounds on which they opposed bail; i) witness interference and ii) flight risk

Absconding 9. The prosecution has alleged that the accused is a flight-risk because he went into hiding after committing the offence and was arrested after some time at his hiding place upon expending much resources, effort and time. The accused stated that he was not a flight-risk. Nevertheless, whilst the accused has the right to liberty, his attendance during trial must be guaranteed. The prosecution has established that the accused may abscond and there is no way his attendance in the trial could be guaranteed.

Interference with investigations and witnesses 10. The prosecution has made two allegations under this head. Likelihood of or interference with prosecution witnesses by the accused. And, interference with investigations. Interference with investigations or witnesses is an affront to the trial in particular, and the administration of justice in general, thus, justifiable reason to limit the right to liberty (R. vs. Patius Gichobi, article 24 of the Constitution)

11. See also a work of the court in R. vs. Jaktan Mayende & 3 others, that:“…In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice; undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the Preamble to the Constitution of Kenya 2010……Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give schewed evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.”

12. The specific instances of or likelihood of interference with investigation or witnesses must be laid before the court with such succinct detail or evidence as to persuade the court to deny the accused bond (R. vs. Dwight Sagaray & 4 others, 2013 eKLR)

13. According to the prosecution, the accused while in hiding was threatening key witnesses. The investigations found the other key suspects who are still at large and efforts to arrest them are ongoing based on the crucial and irrefutable evidence obtained during the investigations. These are all close associates of the accused. They fear that the accused may interfere with ongoing further investigations into the case so that his accomplices will not be arrested.

14. The prosecution is apprehensive that the accused, if released, will interfere with investigations and witnesses in that he interacted significantly with potential prosecution witnesses in a bid to establish a false alibi for himself by transporting PC Makokha and another to the deceased wife’s place on the date of the incident, at his own cost by his own means of transportation. The prosecution is afraid that should he be granted bond he shall influence the now known prosecution witnesses. Given that he concealed and hid the suspected murder weapon in his car where it was later recovered before his arrest.

15. The prosecution proffers the accused should be denied bond until the very close accomplices are arrested, and charged and key prosecution witnesses have testified. Thereafter, it may be reviewed.

16. The accused did not file any replies.

17. The court notes that accomplices in the crime are yet to be arrested. The material presented before the court show that the accused wields some influence upon the accomplices who are said to be close associates of the accused.

18. His involvement in the initial investigations and his attempt to conceal the murder weapon are clear indications that he is likely to interfere with investigations especially on the yet to be arrested accomplices.

Conclusions and orders 19. The prosecution has established the accused is likely to abscond, interfere with investigations and witnesses if released on bond. In light thereof, there are compelling reasons not to release the accused on bond.

20. The accused is denied bail. He shall remain in custody during the hearing of the case. The hearing of the case shall however be fast-tracked.

21. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 6TH DAY OF DECEMBER, 2023. F. GIKONYO M.JUDGEIn the Presence of:1. CA – Leken2. Masolo for Accused - present3. Okeyo for DPP - present