Republic v Musau [2022] KEHC 215 (KLR)

Republic v Musau (Criminal Case E033 of 2021) [2022] KEHC 215 (KLR) (22 March 2022) (Ruling)

Neutral citation: [2022] KEHC 215 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E033 of 2021

MW Muigai, J

March 22, 2022

Between

Republic

Prosecution

and

Andrew Mutiso Musau

Accused

Ruling

1. The accused herein ANDREW MUTISO MUSAU was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars are that on the 21st of October, 2021 at Bondeni area in Athi River Sub-County within Machakos County murdered CAROLINE CHEPKURUI.

2. On 17/01/2022 a Medical Assessment Report dated 12/01/2022 was filed in Court stating that the accused person is fit to plead.

3. On 8/02/2022 the Charge and Information was read over and to the accused person in Kiswahili by the Court Clerk and the accused person herein replied “Si Kweli” – it is not true. The plea of not guilty for the accused person was entered.

4. Mr. Musyimi the Advocate on record for the Accused person applied for Pre-Bail/Bond Report in respect of the accused person.

5. The Court ordered for a Pre-bail report in respect of the accused person to be obtained before Bail/Bond is considered.

6. The court further ordered that the statements/documents shall be served to the accused person’s counsel.

7. The Pre-bail Report dated 01/03/2022 was filed in Court 21/03/2022 was conducted and it had the following findings:1. That the Accused person had no history of previous jumping bail or bond.2. That the victim’s family are strongly opposed to the accused being released on bond.3. That the community members and local administration at his rural home gave a positive report about him but the Bondeni Area indicated that he accused was involved in anti-social practices like selling illicit brew and was a leader of Gaza criminal group which terrorized the community members.

8. In conclusion the Report was favourable for the accused person to be released on bond/bail.

9. Article 49(1)(h) of the Constitution provides that: -An accused 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.

10. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail as follows:The following procedures should apply to the bail hearing:Clause 426a.The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit, or abet the commission of, a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody.DETERMINATION

11. In light of Article 49(1) Constitution of Kenya 2010, the Prosecution/DPP have/has not adduced any compelling reasons to prevent this Court not to grant bail/bond.

12. The Accused person shall be released on bond of Kshs.1,000,000/- million with one(1) surety of like amount.The bond/bail is on the following conditions:-a.The accused person shall at all times appear/attend court as and when required.b.The accused person shall not interfere with the witnesses or tamper with the evidence.c.The accused person shall not be involved and/or reside with the immediate family so as to ensure their security and safety.d.The accused person shall not leave the jurisdiction of this Court without permission of the Court.

It is so ordered.DELIVERED SIGNED & DATED IN OPEN COURT ON 22ND MARCH 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE