Republic v Mary Sammy & another [2013] KEHC 344 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE NO. 28 OF 2011

REPUBLIC ……………………………………………………… RESPONDENT

VERSUS

         MARY SAMMY

1. KIMWELE NYUKA ……………….…….  ACCUSED/APPLICANT

R U L I N G

1. The 1^st Applicant, Mary Sammy, and the 2^nd Applicant, Kimwele Nyuka, are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63), Laws of Kenya. 

The particulars of the offence are that on the 25^th day of April, 2011 at about 11.00 a.m. at Usenga village, Kanzau Sub-location, Kisasi Location of Kitui District within Kitui County jointly murdered Kinyamasyo Mweti.

2. Each of the Applicants pleaded not guilty.  The Applicants have applied to be released on bail pending trial.  The grounds upon which the applications are based are similar and can be summarized as follows:-

1. That the Applicants have been in remand custody for a period of over 2 years and are likely to remain in custody longer due to the large volume of work.
2. That the Applicants have families that depend on them for their daily bread.
3. That the Applicants undertake to abide by the terms of bail and not to interfere with the prosecution witnesses.

3. The application was objected to by the State.  The Investigating Officer, Sgt. Richard Mbithi swore an affidavit on 7/11/2013 which raised the following issues:-

1. That the Applicants have been supplied with statements of prosecution witnesses and are aware of weight of the prosecution case.
2. That the Applicants and the witnesses come from the same locality and there is likelihood of interfering with witnesses and the witnesses may also feel insecure in view of the brutality meted out on the deceased.
3. That the serious nature of the offence and the severity of the sentence imposed by the law is an incentive for the Applicants to abscond.

4. I have considered both the application and the reply to the same.  Section 49 (1) of the Constitution states as follows:-

“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending the charge or trial unless there are compelling reasons not to be released.”

5. However, the court has discretion to grant or refuse bail depending on the circumstances of each case.  The court is required to take into consideration settled principles of the law when determining whether or not to grant bail pending the hearing of a criminal case or pending the hearing of an appeal.  The principles to be considered by this court in determining whether or not to grant bail were set out in Mwaura v Republic (1986) KLR 600.  The said principles include the following; the nature of the offence, the strength of the evidence, the character or behavior of an accused and the seriousness of the punishment to be meted if the accused is found guilty.  The primary underlying consideration is whether the accused will turn up at the appointed place and time for their trial.  The court further held that in the exercise of its discretion, if certain exceptional circumstances personal to the accused exist which when weighed against the risk of the accused absconding, the balance will tilt in favour of granting bail.  Another factor that the court will consider is whether the accused will interfere with witnesses if they are released on bond.
6. The State has not given any compelling reasons why the Applicants should not be released on bond.  Compelling reasons should not be a matter of conjecture, guesswork or speculation.  Being supplied with statements of prosecution witnesses is a matter of right guaranteed by the Constitution under Article 50 (2) (j).  There are no cogent reasons given in support of the assertion that the Applicants are likely to interfere with witnesses.  The provision for death sentence cannot be used against the Applicant as that would negate the Constitutional guarantee for bail in capital offences.
7. With the foregoing, I allow the application.  The Applicants may be released on a Kshs. 1 Million personal bond with one surety of a like sum.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 19^th  day of December 2013.

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B. THURANIRA JADEN

JUDGE