Republic v Muimi Muneeni [2015] KEHC 2310 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL CASE NO. 13 OF 2015

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

VERSUS

MUIMI MUNEENI      ….................................................... ACCUSED

R U L I N G

Before me is an application by way of Notice of Motion for bail pending trial. The application dated 23rd July 2015 was filed under Article 20, 22, 23 (1), 27 (1), 49 (h) and 50 (2) (a) of the Constitution of Kenya 2010. Several grounds were listed on the face of the application. The application was filed with a supporting affidavit sworn by the applicant/accused on 23rd July 2015.

Mr. Mwalimu for the applicant made submissions in support of the application. Mr. Mwangi for the Director of Public Prosecutions made submissions in opposition to the application.

I have considered the application, documents filed and the submissions on both sides.

This is an application for bail pending trial. Under Article 49 (1) (h) of the Constitution of Kenya 2010 every arrested person has a right to be released on bond or bail pending charge or trial unless there are compelling reasons not to be so released. The article provides as follows:-

49  (1) An arrested person has the right

(h) to be released on bond or bail, on reasonable conditions,pending a charge or trial, unless there are compellingreasons not to be so released.

Courts have held that the burden for demonstrating the compelling reasons is on the prosecution. In my view however, where the court becomes aware of any other compelling reasons, it may act on the same, provided the said reasons are specifically stated in the decision by the court.

The most important consideration in an application for bond or bail is whether the accused will attend trial. Other considerations include possibility of interference with witnesses, and in cases such as murder the accused own safety. This list is not exhaustive.

The prosecution herein has not stated that the accused is not likely to turn up for trial. It has however referred to the possibility of interference with witnesses. It has also opposed the application on security reasons, that is the safety of the accused. The prosecution has however not filed any affidavit to support their position.

Having considered the facts and documents filed in this application, I am of the view that the prosecution has not demonstrated compelling reasons against the grant of bail. If they were serious about the issue of interference with witnesses, they should have filed an affidavit, which they have not done. This court is also not aware of any compelling reasons that can militate against grant of bail. I will therefore allow the application for bail.

I thus allow the application and order as follows:-

The applicant/accused may and is hereby released on signing his own bond of Kshs. One million with one surety of similar amount or on payment of cash bail of Kshs. 800,000/=.

He will attend every mention and the hearing of the case.

He will not interfere with prosecution witnesses.

It is so ordered.

Dated and delivered at Garissa this 7th day of October, 2015

GEORGE DULU

JUDGE