Republic v Mutua [2022] KEHC 203 (KLR)

Republic v Mutua (Criminal Case E004 of 2022) [2022] KEHC 203 (KLR) (22 March 2022) (Ruling)

Neutral citation: [2022] KEHC 203 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E004 of 2022

MW Muigai, J

March 22, 2022

Between

Republic

Prosecution

and

Everlyne Mwongela Mutua alias Everlyne Mwongeli

Accused

Ruling

1. The accused herein Everlyne Mwongela Mutua alias Everlyne Mwongeli 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 night of 3rd and 4th day of January, 2022 at Mathathai Guest House at Mlolongo town in Athi River Sub-County within Machakos County murdered Clinton Wanakacha.

2. On 24/02/2022 a Medical Assessment Report dated 16/02/2022 was filed in Court stating that the accused person is fit to plead. The charge and Information was read over and explained to the accused person in a language that he understands –in Kiswahili and the accused herein replied “Si Kweli” – it is not true. The plea of not guilty for the accused person was entered.

3. Mr. Mutinda the Advocate for the Accused person applied for reasonable Bail/Bond terms after the pre-bail/bond report is availed to Court.

4. The DPP was to supply the statements/documents to the Defence.

5. The Court ordered for a Pre-bail report in respect of the accused person and the same was to be availed on 10/03/2022 when this matter was coming up for mention.

6. The Pre-bail Report dated 08/03/2022 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 community members and the local administration at Ikalaasa area said they had no issue with her as she does not pose any security threat to members of public and her safety is not at risk.3. The Prosecution Counsel and the investigations officers were not opposed to him being granted bond as long as she ensures that she shall attend Court dutifully.4. The victim’s family have reservation with her being granted bail/bond. She went into hiding immediately after the incident and was arrested after 3 weeks.

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

8. 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.

9. 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 withwitnesses 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 10. 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.

11. Therefore the bond bail granted is:The accused is to be released on Kshs.800,000/- bond 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.

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