The Republic VS Peter Muiruri Wanyoike The Republic VS Peter Muiruri Wanyoike

The accused person in this matter has applied for release on bail pending the hearing of the matter.
The accused was charged that on the night of 3^rd and 4^th November 2021 at Fish Monger Area within Kayole Njiru Sub County within Nairobi County he murdered Eric Omondi.
The accused has been in custody since 25^th November 2021 when he was arraigned before this court.
The matter was heard by Justice Bwononga who has since retired. The judge only heard one witness and it is now set to be heard by this court.
The prosecution has opposed the release of the accused on bail citing the likelihood of interference with witnesses as a compelling reason.
The witnesses likely to be interfered with according to CPL Timothy Wanyama are four civilian witnesses who are said to be friends to the accused and were present at the time the offence was committed.
The state is apprehensive that if the accused is released on bail he may interfere with the witnesses or intimidate them.
However, counsel for the prosecution confirmed to this court that there is no evidence of any attempts by the accused to reach the witnesses since the time he was arrested.
MR. GICHOKA appearing for the accused submitted that fear is not enough and the state needs to produce evidence of such interference not just an expression of fear.
The accused person through counsel has indicated that he is not bent on doing so and that he intends upon release to retreat to his village in Kigumo Murangá to avoid coming into contact with the witnesses. He has also indicated that he will be willing to abide by the conditions that the court shall impose.
Article 49 (1) (h) of the Constitution declares that an accused person has a right to be released on bail unless there are compelling reasons to deny bail.
The burden of establishing the compelling reasons lies with the prosecution to establish that the accused is unfit for release on Bail.
The allegation of likelihood of interference with prosecution witness is a powerful one and any possible interference with witnesses should be avoided.
The prosecution must however present evidence of either attempts to interfere with witnesses or actual interference for the court to be satisfied that the ground suffices.
It is not enough to simply state that the witnesses are known to the accused thus invite the court to presume that on the basis of that, the accused is likely to interfere with witnesses.
The court cannot act on mere suppositions of the investigator. Evidence must be presented to persuade the court that there is every likelihood of interference with witnesses. See Republic Vs. Joktan Mayende & 3 Others [2012] eKLR .
The term “compelling” is defined in the Concise Oxford Dictionary 9^th Edition as “rousing ,strong interest, attention, conviction or admiration.”
This court takes the view that the likelihood of interference with witnesses, through an admirable suggestion as a ground for denial of bail, it should be clothed with some credible evidence of attempts to interfere or actual interference.
Taking into account the fact that no witness has therefore come forth to suggest that the accused or his proxies have made such a move on them since 2021, it would be unfair and unreasonable to hold that there is likelihood of interference with the witnesses just because they are known to the accused.
To hold such a position would be suggested that where witnesses are known to an accused then bail should not be granted. That would be a very dangerous precedent to set considering that it is highly likely that whenever an offence is committed with any social setting in a family or institution, there will be witnesses who are known to the accused thus the court would then be constrained to deny bail.
The Constitution of Kenya 2010 by abolishing non-bailable offences through the introduction of Article 49 (1) (h) intended that all suspects of crime be allowed to enjoy their right to liberty as they await trial since under Article 5 of the Constitution every person enjoys the right to be presented innocent until proven to be guilty. The court in Danson Mgunya and Another Vs Rep. (2010) eKLR emphasized the need for courts to lean towards the grant of bail except where there are compelling reasons not to grant bail. The primary consideration should be whether an accused person once released on bail would turn up for trial.
The state has not persuaded this court that the accused should be denied bail. No compelling reason has been brought out by the state save for mere apprehension. In the circumstances I hold that the accused shall be admitted to bail in the following terms:-
Accused may be released on a bond of Kshs. 1 million plus one surety of similar amount.
The accused person shall provide contact of two close relatives who shall undertake before the Deputy Registrar of this court that they would be willing to avail the accused person in court whenever required to do so by this court.
The accused and the two persons in (b) above shall maintain the telephone contacts that they will provide to the court throughout the period that this matter shall be pending.
The accused person shall not contact any of the prosecution witnesses before they testify before this court and any attempt to do so shall lead to the immediate cancellation of the bond.
It is so ordered.