Republic v Mwangi [2023] KEHC 26543 (KLR)

Republic v Mwangi (Criminal Case E023 of 2023) [2023] KEHC 26543 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26543 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case E023 of 2023

J Wakiaga, J

December 8, 2023

Between

Republic

Prosecutor

and

David Kariuki Mwangi

Accused

Ruling

1. The accused was charged with the offence of murder Contrary to section 203 as read with section 204 of the Penal Code for which he pleaded not guilty.

2. In compliance with Article 49 of the Constitution, the State through PC Noah Opondo filed an affidavit in opposing the release of the accused on bond/bail and in which it was deposed that there was a likelihood of interference with witnesses due to the close family relationship between the accused and three crucial witnesses.

3. In compliance with the bail and bond policy guidelines, the Court called for pre-bail report in which it was stated that the members of the community were opposed to the accused being released on bond as he was a known bhang peddler in the area and that the deceased was a young woman who was enticed by the accused with money to leave her husband and children and that the incidence had created tension within the community. The family members of the accused on the other hand sought bail for the same offering to ensure that he attends Court. It was however noted that the same had two previous criminal records related to trafficking of narcotic drugs.

4. On the victim impact it was stated that the same left her matrimonial home and moved in with the accused in the year 2022 leaving her children with her ex-husband. Her family including the ex-husband were opposed to the accused being released on bond since they were not safe with the accused being out on bond.

5. It was submitted by Ms Gakumu for the state that bond was not an absolute right and this bother accused should be denied bond until the two crucial witness had testified. On behalf of the accused it was submitted by Mr. Njeraini that the witnesses had already recorded their statements with the prosecution and that the accused had an alternative place of abode outside the area where the incidence occurred.

Determination 6. Bond is a constitutional right of every accused person under Article 49 and may only be limited if the prosecutions provide to Court compelling reasons which the Court of Appeal in Michael Juma Oyamo & another v R [2019] eKLR stated to be forceful and convincing as to make the Court feel strongly that the accused should not be released on bond, thus the accused should not be denied bond on flimsy ground but on real and cogent grounds that meet the constitutional standards.

7. These reasons are captured in Section 4. 9 of the Bail andBondPolicy Guidelines which were further captured in Section 123A (1) of the Criminal Procedure Code.

8. The Court however should not loose sight of the fact that the purpose of bond is and remains to secure the attendance of the accused to Court during the period of his trial and that the right to liberty should never be curtailed as was stated in R v Nuseiba Mohamed Haji Osman [2018] eKLR, denial of a constitutional right is not to be treated lightly and any claim made against an accused person towards curtailing his liberty must not be made on speculation and conjectures.

9. In this cause the prosecution has alleged the possibility of the accused interfering with un-named witnesses and the nature of the interference has not been stated and the Court is left to speculate and to fill the gap for the prosecution, the fact that the accused has previous conviction in respect of drug related offence cannot in my mind be used as a compelling reason to deny bond, leading to the only logical conclusion that there are no compelling reasons advanced and that those attempted can be ring fenced by appropriate bond and bail terms.

10. The accused shall therefore be released on bond/bail on the following terms and conditions:a.Bond of Kenya shillings One Million (Kshs.1,000,000) together with one surety of like amount.b.In the alternative cash bail of Kenya shillings Five Hundred Thousand (Kshs.500,000) with one surety of like amount.c.The accused shall not make any contact of whatever nature with any of the intended prosecution witnesses.d.The accused shall, upon his release report to his area Assistant Chief every last Thursday of the month until final determination of the cause.

11. And it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 8TH DAY OF DECEMBER, 2023. J. WAKIAGAJUDGEIn the presence ofMr Kirui for StateAccused – PresentJackline – Court Assistant