Automated Summary
Key Facts
Jefferson Muli is charged with murder under Sections 203 and 204 of the Penal Code for the death of Abdul Marco Muthengi in Kisekini village on 19/10/2024. Bond proceedings were opposed on 21/11/2024, with an affidavit from PC Jonathan Mumbe asserting Muli would interfere with witnesses, citing his prior assault case (E476 of 2024) and a breach of previous bond terms. The PACs report identified safety risks for Muli if released to Kilungu and highlighted witness intimidation concerns. The court ruled to delay bond release pending vulnerable witness testimony and a 30-day PACs report on alternative safe accommodations.
Issues
- The accused cited Article 49(1)(h) of the Constitution and the Bail and Bond Policy to argue for his right to liberty and presumption of innocence, while the victims contested the application's compliance with legal procedures under the Evidence Act and Oaths Act.
- The court examined the accused's potential flight risk, noting his absence of a fixed abode in Kilungu due to hostility from the deceased's family, which could lead to non-appearance if released on bond.
- The applicants argued that the electronic evidence in the affidavit, specifically the screenshot messages, was improperly annexed and should be governed by Section 106B during trial, not as an annexure, leading to disputes over its admissibility.
- Safety concerns for the accused and witnesses were pivotal. The PACs report indicated the accused's home in Kilungu is unsafe, and the victim's wife fled, prompting the court to delay bond until a safe alternative is found.
- The court evaluated the existence of compelling reasons to deny the accused's release on bond, including the necessity to protect vulnerable witnesses and ensure the accused's compliance with legal procedures until their testimony is completed.
- The victims highlighted that the accused, while on bond for an assault case (E476 of 2024), allegedly committed the murder, suggesting a breach of bond conditions, which they argued supports denying his current bond application.
- The victims argued that the affidavit submitted by the accused is incurably defective due to being sworn in Nairobi and commissioned in Nyeri, which they claim violates the Oaths and Statutory Declarations Act, necessitating its striking out.
Holdings
- The court delayed the accused's release on bond pending the hearing of vulnerable witnesses and the availability of an alternative place of abode for his safety. This decision was based on safety concerns for the accused and victims, as highlighted in the PACs report and the uncle's affidavit, along with the accused's history of breaching previous bond terms.
- A further PACs report on the accused's safety and alternative accommodation was ordered to be submitted within 30 days. The court emphasized the need for updated information on the accused's living situation and potential threats to ensure compliance with bond conditions.
Remedies
- There be a further PACs report on the safety issues for the accused/ any alternative place of abode should the accused be released on bond. The report be availed within 30 days hereof.
- Orders accordingly.
- The accused's release on bond is delayed pending the hearing of evidence from vulnerable witnesses; and/or the availability of an alternative place of abode far from the victims.
Legal Principles
- The court applied the presumption of innocence as a foundational principle in assessing the bond application, aligning with Article 49(1)(h) of the Kenyan Constitution. This principle was used to balance the accused's right to liberty against the state's duty to ensure fair proceedings and witness safety.
- The court referenced Section 106B of the Evidence Act to determine the admissibility of electronic evidence, emphasizing that such evidence must comply with legal requirements rather than being submitted as an annexure. This principle was central to evaluating the validity of the applicant's evidence submission.
Precedent Name
- Mary Gathoni & Anor. v Frida Ariri Otolo & Anor
- Director of Public Prosecution v Tabitha Maina and Praxides Naliaka Musbesbi
Cited Statute
- Evidence Act
- Criminal Procedure Code
- Constitution of Kenya
- Oaths and Statutory Declarations Act Cap 15
Judge Name
TM Matheka
Passage Text
- The accused person not having a fixed abode due to the hostility in the home renders him a flight risk.
- The fact that the family of the victim and some of the witnesses feel unsafe, and have demonstrated the same with evidence, and the fact that the PACs report also speaks to the safety of the accused himself if released at the moment are in my view compelling reasons to delay the release on bond of the accused person.
- There be a further PACs report on the safety issues for the accused/ any alternative place of abode should the accused be released on bond. The report be availed within 30 days hereof.