Republic v Tumuti [2023] KEHC 26338 (KLR)

Republic v Tumuti (Criminal Case 43 of 2018) [2023] KEHC 26338 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26338 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case 43 of 2018

J Wakiaga, J

December 8, 2023

Between

Republic

Prosecutor

and

Joseph Maina Tumuti

Accused

Ruling

1. The accused is charged with the offence of murder and by a Ruling dated 5th day of February 2019, the Court declined to release the accused on bail on the grounds that considering the relationship between the accused and the deceased, there was likelihood of interfering with witnesses or the evidence.

2. The matter proceeded for hearing before me and so far, the evidence of four prosecution witnesses have been recorded at the end of which the accused renewed his application to be released on bond pending the conclusion of the hearing herein.

3. To enable the Court to make a considerate decision on bond, the Court ordered for a pre-bail report wherein it was reported that the accused family resides in Laikipia County where they are small scale farmers, and to them the accused was of good character whom they were willing to bail out. It was stated that the accused moved to Maragua where he was employed in a butchery where he met the victim and was at the time living with her in a rented house. The local administration at Thigithi area of Laikipia had no problems with him being released on bond.

4. On the victims impact it was stated that she had separated with her first husband with whom they had four children, who were now living with their maternal grandmother and aunt respectively and that they were opposed to the release of the accused on bond as he is likely to go back to Maragua where they were living, before they heal from the loss.

5. It was submitted by Mr. Mwangi on behalf of the accused, that he was denied bond on the ground that he will interfere with witnesses and that so far all witnesses who were family members of the deceased had testified and that whereas there was fear from the family members that he would go back to Maragua where the offence occurred, and where the family lives, the same undertakes not to come into contact with the family members. On the strength of the prosecution case, it was submitted that there was no eye witness and therefore there was no reason why the same should be denied bail.

6. On behalf of the Prosecution, Ms Gakumu submitted that the accused employer was yet to testify and that he was not cooperating with the prosecution for which they had applied for witness summons to be issued against him. It was submitted that the pre-bail report had confirmed that the accused was well known in the area where he was cohabiting with the deceased and there was likelihood of him interfering with the remaining witnesses. It was contended that the cause was substantially heard and was likely to be concluded soon.

Determination 7. Whereas bond remains a constitutional right of every accused person, where the matter has proceeded for hearing as in this case , one of the compelling reasons which the Court has to take into account while determining application for bond, is the strength of the prosecution case, while balancing the same with the accused right to be presumed innocent at all stages of trial as provided for under section 4. 9(b) of the Bail and Bond Policy Guidelines to wit “ an accused person should not be subjected to pre-trial detention where evidence against him is tenuous even if the charge is serious. Conversely it may be justified to subject the accused to pre-trial detention where the evidence against the accused is strong. For example, where all the prosecution witnesses have testified and the accused person is aware of the weight of the case against him, it is presumed that the accused has an incentive to abscond as such should be denied bond”

8. Further the accused who has been denied bail is under an obligation to show to the satisfaction of the Court, that there were change of circumstances to warrant grant of bond as the Court stated inRepublic v Joseph Kuria Irungu and another [2020] eKLR. At this stage the Court is not expected to go to the merit of the prosecution case but must look at the nature of the evidence so tendered so as to decide as to whether there is a likelihood of the accused being tempted to abscond.

9. In this cause, in addition to the accused employer who is yet to testify which I consider to be a compelling reason enough to deny the accused bond, the prosecution witnesses have now testified and the accused is now aware of the case against him which might provide an incentive for the same to interfere with the cause of justice. Further there has not been change of circumstances to be benefit of the accused so as to entitle him to review of the decision herein denying bond.

10. I am therefore not satisfied that there has been any change of circumstances to enable the Court grant the accused bond. The same shall remain in custody until the final determination of this cause and it is ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 8TH DAY OF DECEMBER 2023J. WAKIAGAJUDGEIn the presence of:Mr. Kirui for StateAccused – Present