Stephen Mutisya Nzuki v Republic [2017] KEHC 9638 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.413 OF 2016

STEPHEN MUTISYA NZUKI……………….APPLLICANT

VERSUS

REPUBLIC……………………………........RESPONDENT

RULING

The alleged victims in the charges brought against the Applicant were aggrieved by the trial court’s decision to release the Applicant on bail pending trial. They applied to this court, through counsel, to have the decision set aside and substituted by a decision of this court directing that the Applicant remains in custody pending trial and conclusion of the case. In the material part of the application, the victims’ counsel Ms. Leah Owuor stated that:

“Not only has the accused interfered with the victims and witnesses but he has out rightly demonstrated the same before the trial court Hon. Olwande during proceedings on 20th April 2016. As the record shall reflect, the accused person has taken custody of one of the victims, Fidel Otieno who is yet to testify and even accompanied him to court for the hearing when he was intended to testify.”

It is the victims’ contention that the Applicant’s continued interference with the witnesses will obstruct the quest for justice for the victims. That is why the victims were seeking the setting aside decision of the trial court releasing the Applicant on bail pending trial and instead the Applicant be ordered to remain in custody pending the hearing and conclusion of the trial. The application was supported by the prosecution.

The Applicant opposed the application. He stated that he had not influenced the victims in any way in connection with matters before the court. He was of the view that the application had been actuated by malice because there was a move to have him remanded in custody without any justification. He had abided by the terms of the bond. He had attended court without fail. It was his case that no compelling reasons had been placed before the court to persuade the court to cancel the bond that was issued to him. He complained that since he was arraigned in court, the prosecution has not made any effort to efficaciously prosecute the case. He urged the court to dismiss the application.

This court has carefully considered the facts of this application. The thrust of the victims’ counsel’s application is that the Applicant should have his bond cancelled because he has been interfering with the prosecution witnesses. The Applicant denied this fact. What is evident from the Ruling of the trial court is that the victims, who are children, were not immediately removed from the custody of the Applicant until subsequent intervention was made. The victims are no longer in the Applicant’s custody. It is not possible therefore that the Applicant will interfere with the victims while they are in custody of another institution. This court agrees with the Applicant that the victims placed no concrete evidence before the court to entitle the court to cancel the bond that was issued to the Applicant. This court was concerned that the prosecution had, instead of prosecuting the case, engaged in side shows that has resulted in a considerable delay in the hearing and conclusion of the trial. The prosecution should put its acts together and prosecute the case without further ado.

In the premises therefore, this court finds no merit in the victims’ application to have the Applicant’s bond cancelled. The victims failed to provide cogent evidence that constitutes compelling reasons for this court to deny the Applicant his constitutional right of bail pending trial. The application is hereby dismissed.  It is so ordered.

DATED AT NAIROBI THIS 13TH DAY OF JULY 2017

L. KIMARU

JUDGE