Republic v William Mwangi Wa Mwangi [2014] KEHC 4681 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MURDER  NO. 6  OF 2012

REPUBLIC …………………………………………………PROSECUTOR

-VERSUS-

WILLIAM MWANGI  WA MWANGI ………………………..ACCUSED

RULING

The accused in this  case William Mwangi Wa Mwangi was arraigned  before the High Court in Embu  with a charge of Murder contrary to Section 203  as read  with Section 204 of the Penal Code .  The particulars  of the offence alleged  that on the 4th day of April 2012 at Difathas village within Kirinyaga County, the accused  murdered  Esther Muthoni Karimi .  On 2nd May 2012 , the accused  pleaded not guilty to the charges  and was remanded  in custody pending his trial.

By a Notice of Motion dated 19th February 2014 , the accused through  his counsel Mr Gitonga has applied  for bond /bail pending his trial on reasonable terms  and conditions that the court may deem fit  and just in the circumstances of this case.

The application is premised on three grounds namely:-

That the accused has a right to be admitted  to bail and no compelling reasons exists  to deny him bail pending trial .

That the accused has  a right to presumption of innocence before  being proved guilty and further detention   in custody would be punitive and an abrogation  of one of his fundamental rights enshrined  in the bill of rights.

The application is supported by an affidavit sworn by the accused  in which he deponed that he has a constitutional right  to bail unless compelling reasons are shown to exist and that  none exists  in this case, that  he is ready and willing to abide by any terms or conditions of bond imposed by this court and that he will at all times  attend the court whenever  required .  he also pledged  not to interfere with witnesses if his application was allowed  .

Though the application was served on the Director of Public prosecution , no response was filed by the state in opposition thereto.  However  when the application  came up for hearing, the prosecuting  Counsel Mr Sitati opposed the application submitting that the accused was a flight risk allegedly because his place of abode  was unknown, that bond should be denied for the accused’s own safety as the threat of mob justice  which made him surrender  to the police at Muthaiga  police station still subsists and that given  the nature of the offence and severity of sentence on conviction, the accused if released  on bond may be tempted to abscond.

In the alternative, counsel invited the court to impose strict bond terms  in the event that it was inclined to allow the application

Mr Gitonga on his part reiterated  on his submissions  the depositions made by the accused in his supporting  affidavit .  He in addition submitted d that the accused has been in remand  custody since April 2012 and he should not be allowed to continue  suffering due to delays  in his trial caused by shoddy   investigations conducted  by the state.

In response to the state’s submissions  Mr Gitonga submitted  that there is evidence that accused’s place of residence  was well known to the state and that the defence  was not aware of any threat to his life  if he were to be released  on bond.

I have considered the rival submissions made by both counsels  in this matter.

The application is anchored  on Article 49(1) (h) of the Constitution which provides that arrested 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 be to released”

From the above provision, it is clear that though every accused person has aConstitutional right to be released on  bail, that right was not absolute.  This right is limited  only by the existence of compelling reasons  which justify denial of that right .

The Constitution does not however define what  accounts to “compelling reasons”.

In the circumstances therefore, the courts are given discretion to determine  what amounts to compelling reasons  to warrant  denial of bail depending on the merits  and circumstances  of each case.

It is now settled  that in the event that the state is opposed to the grant of bail to an accused person it has the onus to demonstrating that compelling reasons  exist  to justify denial of the Constitutional  right to bail -See

R VS Danson Maonya and another High Court of Kenya Mombasa Criminal Case No. 26 of 2008.  Republic VS Thomas Muthus  Nzii (Nrb) Misc. Cr. Appn No. 13 of 2010 , Republic VS Daniel Musyoka Munya and two others High Court Criminal Case  No. 42 of 2009(Mombasa ).

In this case, the only reason given by the state in opposing bail is that the accused is flight risk because his place of residence was unknown and that his safety  would be at risk if released  on bond.

That state did not however back this claims by any evidence  since no replying affidavit was sworn by the investigating officer to substantiate the allegations.

Mr Sitati’s submissions  in this regard  amounted to statements from the bar which had no factual basis.

The results  is that the state failed to demonstrate  that if released on bail, the accused is likely to abscond .

It is trite that the cardinal principle which the court should      consider is deciding  whether or not to grant bail is whether  the accused  will turn up  for his trial and whether  there are substantial  grounds to believe that he is likely to abscond if released  on bail.

Other established principles include but  are not limited to the following :-

Whether  the accuse id likely  to obstruct justice by interfering

or intimidating  witnesses.

Whether the accused has a fixed abode  within the jurisdiction

of the court.

The nature of the offence and whether the accused’s trial is likely to be finalized within a reasonable time.

The security  of the accused  person if released  on bail.

It is not disputed that the accused person was arrested in this case after he surrendered to the police .  This undisputed  fact in itself is prove  that the accused is not predisposed to avoiding  his trial  and is therefore not likely to abscond  because  if this  were so knowing that he was  suspected to have committed  a serious offence, he  would have chosen to go underground  or escape the court’s jurisdiction instead of surrendering himself to the police.

I also find no merit in the state’s  claim that accused  would be at risk if he is released  on bail just because this claim is not backed by any evidence  and secondly  because it is the states duty  and responsibility to provide security to all citizens of this country including the accuse person in this case.

Though admittedly murder is a serious offence  which  attracts the ultimate penalty  of a mandatory death sentence  upon conviction, it cannot be validly argued  that the severity of sentence upon conviction  will motivate  an accuse person charged with the offence to abscond trial because  if that reasoning was to be upheld, then accused persons charged with capital would never enjoy their  constitutional right to bail.

This in my view does not constitute sufficient  reason to warrant denial of bail.  The new Constitutionaldispensation guarantees all accused persons the right to bail and the right to be presumed innocent until proved quilty   and this includes persons charged with the offence  of murder  and other capital offence .

The court  would therefore be going against  the letter  and spirit  of the ConstitutionalProvisions  that guarantees rights and privileges to arrested and accused persons. If it  were to deny bail just because  the accused is charged  with a serious offence which carries  a mandatory death sentence.

Having said  that I think  it is important to mention that the nature of the offence and severity  of sentence  in the event of  conviction is an important  factor  for the court to take into  when considering the  terms of bail/bod to get in any particular case.

In view of the foregoing reasons , it is my considered view that the state has in this failed to discharge its burden of demonstrating that compelling reasons exists to justify denial of bail to the accused herein.   I therefore allow the application dated 19th February, 2014  on the following terms.

The accused to be released  upon executing bond of kshs 3,000,000 together  with two sureties of similar amount.

The sureties to be approved by the Deputy Registrar  of this court.

During the pendency of the case  or until further  orders of this court , the accused shall appear  for mention of his case before the Deputy Registrar once every 30 days.

It is so ordered.

C.W. GITHUA

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS   29TH DAY OF

MAY 2014in the presence of :-

The accused

Mr Gitonga  for accused

Mr Sitati  for state

Mbogo Court Clerk