1. Grace Wanjiku Gichuki , the Accused/Applicant was arraigned following allegations of having committed the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence thereof being that on the 8 th day of December, 2021, at Miti-liri area Githabai location in South Kinangop Sub-County, within Nyandarua County, she murdered John Wahome Gichuki (Deceased).
2. The Accused denied the information presented by the Director of Public Prosecutions (DPP), therefore seeks to be released on bond pending trial.
3. Through learned defence counsel Mr Kibara, she urges that she is not a flight risk, she stays at Githabai-Njambini, her only home where she has resided since 2018. During the inquest she resided at the same place and has no intention of leaving the area and even being informed about the intended arraignment two weeks before time she did not flee. That she lives well in the community and her two daughters, victims of the crime fully support her release on bail.
4. That at the age of 63 the Accused is sickly and frail and had to be treated for high blood pressure while in custody. and she undertakes to attend court.
5. The State through learned Prosecution Counsel, Ms. Mumbe and the learned victims’ counsel, Mr. Ojare asked for a pre-bail report and upon the same being filed, they opted to rely on the same.
6. According to the pre- bail report, the Accused is stated to be 63 years old, a mother of four adult children, two of them are not in talking terms with her following the incident. The family of the deceased view her as a threat.
7. On the part the community the Accused is a member of P.C.E.A Githabai Church New Njabini Parish where she fellowships. She does not have social interactions with the locals apart from the church members and a few workers but she does not have any involvement in anything criminal.
8. I have considered submissions, as well as the Pre-bail Report.
9. It is an accused person’s right to be released on bond pending trial unless circumstances exist that require incarceration during trial. Article 49(1)(h) of the Constitution provides thus;
(1) An arrested person has the right--
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
10. Although the Constitution and statute are silent on what exactly the circumstances that amount to convincing or persuasive enough to make the court deny the Accused bail; In Republic v Joktan Mayende & 3 Others [2012] KEHC 5551 (KLR) the court stated that;
“...the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.”
11. The Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25 sets applicable procedure to the question of bail. It provides for circumstances under which an accused person may be denied bail thus;
The following procedures should apply to the bail hearing:
a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:
b) That the accused person is likely to fail to attend court proceedings; or
c) That the accused person is likely to commit, or abet the commission of, a serious offence; or
d) That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
e) That the accused person is likely to endanger the safety of victims, individuals or the public; or
f) That the accused person is likely to interfere with witnesses or evidence; or
g) That the accused person is likely to endanger national security; or
h) That it is in the public interest to detain the accused person in custody.”
12. Section 123A of the Criminal Procedure Code provides;
(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123 , in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
(a)the nature or seriousness of the offence;
(b)the character, antecedents, associations and community ties of the accused person;
(c)the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
(d)the strength of the evidence of his having committed the offence;
(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a)has previously been granted bail and has failed to surrender to custody and that if tnh tg released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b)should be kept in custody for his own protection.
13. All these culminate into the fact that an accused can only be denied bail if the State/Prosecution proves existence of compelling reasons. In Ng’ang’a v Republic [1985] KLR 451 Chesoni J . (as he then was) stated thus;
“1. The court, in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (cap 75), should consider the following factors:
a. In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that:
i. The accused will fail to turn up at his trial or to surrender to custody;
ii. The accused may commit further offences; or
iii. He will obstruct the course of justice.”
14. Of paramount importance when considering whether or not to grant bail is the question whether the accused will turn up for trial. The instant charge being murder has serious consequences in the event of conviction. This may tempt the Accused to abscond, but, the prosecution must demonstrate existence of substantial reasons why bail should not be granted. Some secondary victims are apprehensive that the Accused may not turn up for trial. An inquest was conducted and the Accused did not flee even after learning that charges were to be preferred against her. She has a fixed place of abode. No cogent evidence has been placed before this court that she may evade trial.
15. It is alleged that there is a likelihood of the Accused person interfering with witnesses, if that be the case then there is a substantial and credible risk in case she is released. It is for this reason that there should be cogent evidence of the likelihood of existence of threats to that effect. For influencing witnesses obstructs the cause of justice.
16. Notably, no affidavit has been deponed by the prosecution opposing release of Accused on bond. It is stated in the pre-bail report through James Wahome, that the mother and siblings of the primary victim(deceased) are apprehensive that the Accused is capable of interfering with witnesses and even harming her children Linus and Miriam who are not in good terms with her, and are witnesses. So far, no copies of the committal bundle have been availed for perusal by the court, and there being no affidavit evidence to confirm the allegation, it has not been demonstrated that they are witnesses and under any threat for that matter. Also, the Prosecution has not placed before the court evidence of the previous conduct of the Accused where she did tamper and threaten witnesses which is likely to recur.
17. Article 50(2)(a) of the Constitution provides;
(2) Every accused person has the right to a fair trial, which includes the right—
a) to be presumed innocent until the contrary is proved;
18. An accused person is guaranteed the right to be presumed innocent until found guilty by a court of law. It would be wrong for an individual to be subjected to pre-trial detention that is why there is need to balance the right of the accused person and that of the victim.
19. The upshot of the above is that the Prosecution has not demonstrated forceful or convincing reasons requiring the Accused person being denied bail. Therefore, I make orders thus:
a) The Accused is granted bond of Kenya Shillings Two Million (Kshs. 2,000,0000/-) with a surety in a like sum.
b) Upon release, she shall be barred from contacting witnesses who have recorded statements.
20. It is so ordered.
2. The Accused denied the information presented by the Director of Public Prosecutions (DPP), therefore seeks to be released on bond pending trial.
3. Through learned defence counsel Mr Kibara, she urges that she is not a flight risk, she stays at Githabai-Njambini, her only home where she has resided since 2018. During the inquest she resided at the same place and has no intention of leaving the area and even being informed about the intended arraignment two weeks before time she did not flee. That she lives well in the community and her two daughters, victims of the crime fully support her release on bail.
4. That at the age of 63 the Accused is sickly and frail and had to be treated for high blood pressure while in custody. and she undertakes to attend court.
5. The State through learned Prosecution Counsel, Ms. Mumbe and the learned victims’ counsel, Mr. Ojare asked for a pre-bail report and upon the same being filed, they opted to rely on the same.
6. According to the pre- bail report, the Accused is stated to be 63 years old, a mother of four adult children, two of them are not in talking terms with her following the incident. The family of the deceased view her as a threat.
7. On the part the community the Accused is a member of P.C.E.A Githabai Church New Njabini Parish where she fellowships. She does not have social interactions with the locals apart from the church members and a few workers but she does not have any involvement in anything criminal.
8. I have considered submissions, as well as the Pre-bail Report.
9. It is an accused person’s right to be released on bond pending trial unless circumstances exist that require incarceration during trial. Article 49(1)(h) of the Constitution provides thus;
(1) An arrested person has the right--
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
10. Although the Constitution and statute are silent on what exactly the circumstances that amount to convincing or persuasive enough to make the court deny the Accused bail; In Republic v Joktan Mayende & 3 Others [2012] KEHC 5551 (KLR) the court stated that;
“...the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.”
11. The Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25 sets applicable procedure to the question of bail. It provides for circumstances under which an accused person may be denied bail thus;
The following procedures should apply to the bail hearing:
a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:
b) That the accused person is likely to fail to attend court proceedings; or
c) That the accused person is likely to commit, or abet the commission of, a serious offence; or
d) That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
e) That the accused person is likely to endanger the safety of victims, individuals or the public; or
f) That the accused person is likely to interfere with witnesses or evidence; or
g) That the accused person is likely to endanger national security; or
h) That it is in the public interest to detain the accused person in custody.”
12. Section 123A of the Criminal Procedure Code provides;
(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123 , in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
(a)the nature or seriousness of the offence;
(b)the character, antecedents, associations and community ties of the accused person;
(c)the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
(d)the strength of the evidence of his having committed the offence;
(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a)has previously been granted bail and has failed to surrender to custody and that if tnh tg released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b)should be kept in custody for his own protection.
13. All these culminate into the fact that an accused can only be denied bail if the State/Prosecution proves existence of compelling reasons. In Ng’ang’a v Republic [1985] KLR 451 Chesoni J . (as he then was) stated thus;
“1. The court, in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (cap 75), should consider the following factors:
a. In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that:
i. The accused will fail to turn up at his trial or to surrender to custody;
ii. The accused may commit further offences; or
iii. He will obstruct the course of justice.”
14. Of paramount importance when considering whether or not to grant bail is the question whether the accused will turn up for trial. The instant charge being murder has serious consequences in the event of conviction. This may tempt the Accused to abscond, but, the prosecution must demonstrate existence of substantial reasons why bail should not be granted. Some secondary victims are apprehensive that the Accused may not turn up for trial. An inquest was conducted and the Accused did not flee even after learning that charges were to be preferred against her. She has a fixed place of abode. No cogent evidence has been placed before this court that she may evade trial.
15. It is alleged that there is a likelihood of the Accused person interfering with witnesses, if that be the case then there is a substantial and credible risk in case she is released. It is for this reason that there should be cogent evidence of the likelihood of existence of threats to that effect. For influencing witnesses obstructs the cause of justice.
16. Notably, no affidavit has been deponed by the prosecution opposing release of Accused on bond. It is stated in the pre-bail report through James Wahome, that the mother and siblings of the primary victim(deceased) are apprehensive that the Accused is capable of interfering with witnesses and even harming her children Linus and Miriam who are not in good terms with her, and are witnesses. So far, no copies of the committal bundle have been availed for perusal by the court, and there being no affidavit evidence to confirm the allegation, it has not been demonstrated that they are witnesses and under any threat for that matter. Also, the Prosecution has not placed before the court evidence of the previous conduct of the Accused where she did tamper and threaten witnesses which is likely to recur.
17. Article 50(2)(a) of the Constitution provides;
(2) Every accused person has the right to a fair trial, which includes the right—
a) to be presumed innocent until the contrary is proved;
18. An accused person is guaranteed the right to be presumed innocent until found guilty by a court of law. It would be wrong for an individual to be subjected to pre-trial detention that is why there is need to balance the right of the accused person and that of the victim.
19. The upshot of the above is that the Prosecution has not demonstrated forceful or convincing reasons requiring the Accused person being denied bail. Therefore, I make orders thus:
a) The Accused is granted bond of Kenya Shillings Two Million (Kshs. 2,000,0000/-) with a surety in a like sum.
b) Upon release, she shall be barred from contacting witnesses who have recorded statements.
20. It is so ordered.