REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E016 OF 2022
JOHN WANYOIKE KIBUGI ALIAS VDJ FLEX….………… APPLICANT
VERSUS
REPUBLIC……………………………………………………RESPONDENT
RULING
1. The Applicant jointly with others before the court were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code; they are accused of having murdered Purity Wangeci Karinga on the 13th day of May, 2022 within Burira Estate within Kiambu East Sub-County, Kiambu County.
2. The Applicant together with his co-accused had on the 9th June, 2022 applied to be released on bond. The prosecution was not opposed to the admission and release of the co-accused to favourable bond terms but strenuously opposed the Applicant’s bid for admission to bond/ bail; the reasons given by the prosecution was that the key prosecution witnesses were acquaintances of the Applicant and there was a strong likelihood of him interfering with these witnesses; the Applicant is also alleged to have threatened to kill his co-accused if they divulged how the offence was committed.
3. These averments were not controverted leading the Court to make a finding that there were compelling reasons to deny the Applicant admission to bond; the Court however in all instances directed that he was at liberty to renew his application for bail.
4. On the 3rd October,2023 the Applicant renewed his application for review for admission to bail pending the hearing of the murder case; The Applicant submitted that there were two (2) Rulings on the issue of Bond and in both rulings there were no compelling reasons to deny the Applicant admission to bond; the Applicant urged this Court to review the Bond terms to protect the integrity of the proceedings;
5. In the instant application for review the Prosecution was still opposed to the Applicant being admitted to Bond on the grounds that the star witnesses had not yet testified and the circumstances for admission had been aggravated by the fact that though bonded these witnesses had failed to be in attendance at the hearings and there was a strong likelihood of the prosecution witnesses having been interfered with; the prosecution urged the court not to interfere with the Ruling made by Ngetich J on the 4th October, 2022.
6. After hearing the parties the only issue framed for determination is whether the Applicant can be admitted to bond at this stage.
7. It is trite law that the right to bail is not absolute and where there are compelling reasons the said right may be restricted. And that it is upon the prosecution to demonstrate that there exist compelling reasons to deny an accused person bail.
8. What the compelling reasons are, however, depend on the circumstances of each case. The question the court must always keep in mind is whether or not the accused will be able to attend the trial and whether or not the free and fair trial can be achieved notwithstanding the release of the accused on bond.
9. In determining whether or not a free and fair trial is possible the Court must take into account the circumstances of the accused as well as that of the potential witnesses. In this instance though having been bonded the star witnesses are yet to attend court to testify; these witnesses are said to be acquaintances of the Applicant and the failure of all three of them to attend the hearings on 19/03/2024 and 18/11/2024 leads to a presumption of interference. Secondly, the averments in the earlier bail applications that the Applicant is a person of no fixed abode are still yet to be controverted.
10. In the light of the above the prosecution has satisfied this Court on a balance of probabilities of the existence of compelling reasons and the court is further satisfied that a fair trial may not be achieved if the Applicant is released on Bond.
11. For those reasons the Applicants’ application for review is found not to be merited at this juncture and it is hereby disallowed;
12. The Applicant is at liberty to re-apply for review once the three (3) student prosecution witnesses have testified;
Orders Accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 15TH DAY OF JANUARY, 2025.
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Gacharia – for the State
Olieti – for 1st Accused/Applicant
Accused/Applicant - present in court/ in custody