REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL CASE NO. 11 OF 2019

REPUBLIC………………………………………………………..PROSECUTOR

VERSUS

VIRGINIA MUTHONI MWANGI………………………………1^ST ACCUSED

NICHOLAS MWANGI MUTHONI……………………………..2^ND ACCUSED

RULING

1. The accused pray for bail pending trial.

2. Their learned counsel, Ms. Kimani, submitted that there were no compelling reasons to deny the 1^st accused bail. But she was non-committal about the circumstances of the 2^nd accused.

3. The Director of Public Prosecutions only opposed the release of the 2^nd accused.

4. The overarching objective of bail is to ensure the accused attends trial.  See Muraguri v Republic [1989] KLR 181, Republic v Elias Kipkemoi, Eldoret High Court Criminal Case 42 of 2014 (unreported).

5. It is a truism that the accused is presumed innocent. Under Article 49 (1) (h) of the Constitution, an accused person is entitled to bail unless there are compelling circumstances. 

6. Other relevant matters to be considered by the court include: the nature of the charge; the likely sentence; previous criminal records, the views of the family of the victim, the possibility of interference with witnesses; the temptation to abscond; and, the safety of the accused.

7. In addition, the Victims Protection Act 2014 requires the views of victim’s family to be taken into account at this stage. The deceased’s brother, Kamau, and his wife, Wangari, are still grieving the loss of their relative. The latter was emphatic in her objections to the release of both accused. It is not lost on me that Kamau and Wangari are listed as witnesses in this case.

8. The accused face a grave charge of murder. The Director of Public Prosecutions informs the High Court that on 5^th June 2019 at Gitugi Location within Murang’a County they jointly murdered Peter Maina Macharia.

9. The pre-bail report dated 7^th October 2019 indicates that the 2^nd accused regularly smokes bhang; a roll a day since about 2010. He is a son of the 1^st accused. From the circumstances disclosed in the committal bundle; the brutality meted out on the deceased; and, considering that the death occurred barely four months ago, I find that it would be highly insensitive to release the 2^nd accused at this stage.

10. The 1^st accused on the other hand was born in 1958. She has a serious medical condition. She used to have a relationship with the deceased until three years ago. It is alleged that the homicide occurred when the deceased, who was drunk, insisted on being allowed into her homestead. When he refused to leave, she sought the assistance of the 1^st accused which led to the assault and death of the deceased. All those are mere accusations for now; the accused are still deemed innocent. Taking all factors into consideration, I find no compelling reason to deny the 1^st accused bail.

11. The upshot is that bail for the 2^nd accused is refused.

12. However, the 1^st accused may be released on bail upon execution of a cognizance in the sum of Kshs 200,000 together with one surety of a similar amount. There will be two conditions: Firstly, the 1^st accused shall not interfere with witnesses; and, secondly, she shall attend all mentions or hearings of the case. In default, her bond shall be cancelled and the surety called to account.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 22^nd day of October 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

1^st & 2^nd accused.

Ms. Kimani for the accused.

Mr. Mutinda for the Republic.

Ms. Dorcas & Ms. Elizabeth, Court Clerks.