REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL REVISION NO E025 OF 2021

REPUBLIC...................................................PROSECUTOR/RESPONDENT

VERSUS

SAMWEL WAINAINA............................................ACCUSED/APPLICANT

RULING

The case for the applicant

The applicant has applied for the following orders.

1) Spent

2) An order to release the applicant on bail/bond pending his trial on a charge murder pursuant to the provisions of article 49 (1) (h) of the 2010 Constitution of Kenya.

The prosecution has opposed the bail application through the supporting affidavit of the investigating officer (No. 91852 PC Moses Mbwele) who has averred to the following major averments. The accused assaulted the deceased on the night of 17^th and 18^th March 2021 in a house in which he lived with the deceased in Waruku area of Kangemi in Nairobi. After the assault the accused took the deceased to Eagles Nursing home where she was pronounced death upon arrival. The accused was directed to make a report to the police. He then reported at Muthangari police station. He reported that the deceased had died of ashma attack under OB No. 03/18/3/2021.

Furthermore, the deceased took the body of the deceased to mortuary. The mortuary attendant realized that the body of the deceased had an injury which was inconsistent with ashma attack. A postmortem was conducted upon the body of the deceased; which revealed that the cause of death was due to a head injury due to a blunt object trauma.

The chronology of events demonstrates that the accused will go to any length to evade justice including absconding from the jurisdiction of the court if he is released on bail/bond. He is therefore a flight risk. This is more so as the accused is charged with murder which carries a penalty of death.

The prosecution witnesses are the neighbours of the accused and are well known to him. The investigating officer is apprehensive that the accused is likely to interfere with the prosecution witnesses.

No details have been provided in respect of the residence of the accused and whether he is in gainful employment. Furthermore, if the accused is released the irate members of the public who are still agitated will attack him. It is for his own safety that the accused be denied bail. Additionally, if accused is released on bail it will disturb public peace.

The submissions of the prosecution

Counsel for the prosecution (Ms peris Maina) has filed written submissions in opposition to the application. She has submitted that there are compelling reasons that warrant denial of bail to the accused. Counsel has submitted that there is real apprehension that the accused is likely to interfere with the prosecution witnesses. In support of this proposition, counsel has cited Republic v Frederick Ole Leliman & 4 others (2019) e-KLR, in which that court observed in respect of the public interest and the compromise of the criminal justice system, that interference with the case may take many forms among them, influencing or compromising or inducing or tarrying a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. That court also pointed out that such interference may take place at any stage of the proceedings including immediately on commission of the offence, during investigations and during trial and can be committed by any person including the accused, witnesses or other persons.

Counsel further submitted that the case is for hearing on 1^st, 2^nd, and 7^th March 2022 when the key witnesses are expected to testify. She therefore submitted that it is in the interests of justice that bail/bond be denied and then a decision will be made after their testimony has been taken.

The case for the applicant

The accused through his 17 paragraphs replying affidavit made a response to the opposition of his application by the prosecution. He made the following major averments. He has a right to be release on bail. He is the sole bread winner of his siblings following the death of his mother. He dropped out of school due to lack of school fees.

He has further deposed as follows. He reported the death of the deceased to the police and that therefore he is not a flight risk. He has also deposed that he will not interfere with the prosecution witnesses.    He has also denied assaulting the deceased. Furthermore, he denied that the cause od death of the deceased was due to strangulation.

The submissions of the accused/applicant.

Counsel for the accused has submitted based on article 49 (1) (h) of the Constitution that the accused has a right to be released on bail/bond on reasonable terms. Counsel also cited section 123A of the Criminal Procedure Code which sets out the parameters for the grant of bail. These include the seriousness of the offence and all the relevant circumstances of the case.

He further submitted that the accused is not a flight risk in respect of which he cited the Judiciary Manual on Bail and Bond Guidelines in paragraph 4.9.

Furthermore, counsel cited Republic v Edwin Odiwuor Otieno & 2 Others (2021) e-KLR, in which that court in respect of the allegation of interference with witnesses observed that: “……merely knowing witnesses is not sufficient in itself to satisfy the above test. There should be proof of some other ground that would justify a finding that knowing the witnesses poses a threat to the lives of the witnesses. No such ground was established…….”

Finally, counsel submitted that there are no compelling reasons to deny bail to the applicant.  He has therefore urged the court to release the accused on bail.

Issues for determination

I have considered the affidavits of the parties and their submissions and the applicable law. As a result, I find the following to be the issues for determination.

1 Whether the accused is likely to interfere with the prosecution witnesses.

2 Whether the accused is a flight risk.

Issue 1

The investigating officer (No. 91852 PC Moses Mbwele) has not placed any evidence before the court of any prosecution witness who was allegedly interfered with by the accused or his proxies. In the absence of such evidence, his averment that there is a likelihood that the accused is likely to interfere with the witnesses is speculative in nature and is inadmissible. I therefore reject his averment for that very reason.

Issue 2

The accused reported this incident to the police at Muthangari police station after being told to do so. Furthermore, there is no evidentiary basis to conclude that the accused is a flight risk. The contention by the prosecution that he is a flight risk lacks evidentiary basis and I hereby dismiss it for lacking in merit.

After taking all the foregoing matters into account, I find on the evidence and the applicable law that there are no compelling reasons to deny bail/bond to the accused.

In the premises, the application of the accused succeeds and is hereby granted bond in the sum of shs 150,000/- with a surety of a similar amount to be approved by the Deputy Registrar of this court.

In the interim period the accused will be remanded in custody until he complies with the terms of his release on bail/bond.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 21ST DAY OF MARCH 2022.

J M BWONWONG’A

JUDGE

In the presence of-

Mr. Kinyua court assistant

Ms Maina for the Republic/respondent

Mr Gachau for the accused/applicant