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Republic v Namono (Criminal Case E069 of 2022) [2022] KEHC 16179 (KLR) (Crim) (9 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16179 (KLR)
Republic of Kenya
Criminal Case E069 of 2022
K Kimondo, J
December 9, 2022
Between
Republic
Prosecutor
and
Sarah Namono
Accused
Ruling
1.The accused seeks bail pending trial.
2.Her learned counsel, Mr. Khavagali, submitted that there are no compelling reasons to deny the motion. Reliance was made on Articles 49 and 50 of the Constitution, as read together with section 123 A(1) of the Criminal Procedure Code.
3.The republic opposed the application through a replying affidavit made by the investigating officer, Issa Ali Haret, and sworn on 10th November 2022. In a summary, it is averred that the accused is a Ugandan residing unlawfully in Kenya; that her husband and children have relocated; that she has no fixed abode; and, that her security would not be guaranteed.
4.On 24th November 2022, I heard further arguments from the learned counsel for the accused and the republic.
5.I take the following view of the matter. No witnesses have taken to the stand yet. It follows that the accused is presumed innocent at this moment. Under Article 49 (1) (h) of the Constitution, as read together with section 123 A(1) of the Criminal Procedure Code, she is entitled to bail unless there be compelling circumstances.
6.Regarding the phrase, compelling reasons, I am well guided by the decision of Gikonyo J in Republic v Joktan Mayende & 3 others, High Court, Bungoma Criminal Case 55 of 2009 [2012] eKLR where the learned judge stated-
7.The overarching objective of bail is to ensure the accused attends trial. See Michael Juma Oyamo & another v Republic [supra]; Muraguri v Republic [1989] KLR 181; R v Fredrick Ole Leliman & 4 others, Nairobi High Court Criminal Case 57 of 2016 [2016] eKLR.
8.When I juxtapose those principles against the materials before the court, I find as follows. Firstly, the pre-bail report filed on 24th November 2022 by M. M. Abima, Probation Officer is unfavourable to the accused. In particular, it concludes that there is palpable anger at the locus in quo, and that her security would be at risk.
9.That issue is reinforced at paragraph 9 of replying affidavit: The accused was rescued by the police from a lynch mob and taken to MSF Hospital. The deposition states that the accused and her family were “undocumented” immigrants; and, that the deceased was buried in Uganda.
10.Secondly, the family was residing in Mathare area. The accused’s husband and their children have since relocated from Kenya. I am then not confident that she has fixed abode in Kenya or any meaningful family ties.
11.Thirdly, the accused faces the grave charge of murder. The Director of Public Prosecutions informs the High Court that on the 23rd September 2022 at 2130 hours at White Castle area within Nairobi County she murdered Grace Kibone.
12.Fourthly, I note that the deceased was the co-wife of the accused; and, that one of the proposed witnesses was attacked while trying to protect the deceased. The security of such a witness would also be jeopardized by the release of the accused.
13.All those are compelling reasons for denial of bail. I decline to grant bail at this stage. However, in the interests of justice, I direct that that this trial shall be fast-tracked.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER 2022.KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of-Accused.Mr. Khavagali for the accused instructed by KKLaw Advocates.Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.
