Republic v Samuel Adongo Achola & Cornelius Ombagi Nyabera [2013] KEHC 1359 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL  CASE NO. 25 OF 2012

REPUBLIC.................................................................RESPONDENT

VERSUS

SAMUEL ADONGO ACHOLA...….......................1ST APPLICANT

CORNELIUS OMBAGI NYABERA ……....….....2ND APPLICANT

RULING

Samuel Adongo Achola and Cornelius Ombagi Nyabera are facing trial for the murder of John Mwangi. According to the information filed against them, they committed the offence on 1st April 2012 at Kayole Estate in Nairobi.

They were arraigned in court on 13th April 2012 and their trial commenced on 14th June 2012.  However, the trial had to commence de novo after 3 witnesses had testified when the present court took over the trial. So far only one witness has testified.

The accused have now applied to be released on bail pending the conclusion of their on-going trial. They state in their respective applications dated 2nd May 2013 and 10th June 2013 that they will attend court for their trial and shall not interfere with prosecution witnesses.  The 1st applicant specifically states in his supporting affidavit that the eye witnesses who witnessed the incident have now testified and therefore there were no further compelling reasons for him to be denied bail.

I have considered the rival affidavits and the oral submissions by respective counsel tendered in court on 8th October 2013.  It is the 1st applicant’s view that there are no compelling reasons to deny him bail.  His contention is that the reasons which had made the court dismiss his earlier application no longer exist.  He states that he can no longer interfere with witnesses because the said witnesses have already testified and that in any case the State has sufficient mechanisms to prevent and deal with interference with witnesses.  For the 2nd accused, it is his argument that this being his first application, the reasons advanced by the court in rejecting the 1st applicant’s earlier application do not apply.  It is his further argument that the witnesses had relocated as stated by the prosecution and that therefore there was no chance of interference.

In considering this application, I observe that the 1st applicant’s application was rejected by the court (      Ombija J.) vide a Ruling dated 5th June 2012 for the reasons that the accused was likely to intimidate the witnesses and was also likely to abscond. The court however stated that the accused would be at liberty to renew his application once the witnesses who were his neighbours had duly completed their testimony.

From the record, it appears that the key witnesses had testified as of 13th November 2012.  However on 13th June 2013, when the matter came up for directions, it was directed that the matter starts de novo.  So far only one prosecution witness has testified. This therefore means that not all the key witnesses have testified.  I find it necessary to take the evidence of the key witnesses and particularly that of the minor witness who the prosecution states was an eye witness before the accused can be granted bail.

In the premises, I am disinclined to grant the applicants bail at this stage.  Their respective applications are dismissed.

Ruling delivered, dated and signed at Nairobi this 7th day of November, 2013

R. LAGAT - KORIR

JUDGE

In the presence of:

…………………………….:   Court clerk

……………………………:    1st Applicant

……………………………:    2nd Applicant

……………………………:    For the 1st applicant

…………………………….:   For the 2nd applicant

…………………………….:   For the State/respondent