Republic v 1. Thomas Mumo Muasya 2. Zachary Muoki Mwanza. Johannes Mutisya Muluila & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HC.CR.C. NO.34 OF 2010 REPUBLIC..........................................................................................APPLICANT VERSUS 3. 1. THOMAS MUMO MUASYA 2. ZACHARY MUOKI MWANZA. JOHANNES MUTISYA MULUILA....................................................ACCUSED 4. JOHN NGUNGI NGUMBI RULING (1) In the information filed on the 31st May, 2010, (1) Thomas Mumo Muasya, (2) Zachary Muoki Mwanza, (3) Johannes Mutisya Muluila and (4) John Ngungi Ngumbi (“the accused persons/Applicants”) the court is informed that the accused persons are charged on two counts of the offence of murder contrary to the provisions of the Penal Code. The accused persons therefore took out a Notice of Motion on the 9th February, 2011 seeking orders to be released on bail. The application is brought under Article 49(1) of the Constitution and is supported by the affidavit of Fred Mutua Esq. Advocate on record for the accused persons sworn on the 8th February, 2011. Learned Counsel says that the accused persons are not a flight risk residing primarily within Muambani village where the offences are alleged to have been committed, wherein they carry out their farming and business activities. The accused persons pose no danger and Mr. Mutua believes that they will faithfully attend court if granted bail. (2) The State opposes the application on the basis of the replying affidavit of Sgt. Francis Njuguna (the Investigating Officer) made on the 2nd March, 2011. He summarizes the investigations leading to the arrest of the accused persons. He says that as the accused persons would face the death sentence if convicted, the accused persons are likely to abscond if granted bail. They are also prominent people within Makueni District and would either inflict fear or compromise the prosecution witnesses who reside in the same locality. (3) In his submissions, Mr. Mutua contended that the accused persons after being charged should have been released because at their first appearance the prosecution did not apply for their detention and no reasons were offered for keeping them detained. Learned counsel cited the decisions in Republic –vs- Danson Mgunya and Another [2010] eKLR and urged that the application be allowed. In reply, Gitonga Muriuki, Esq. learned State Counsel in reiterating that the averments in the Replying Affidavit contended that when the accused persons were first brought before the court on the 3rd June, 2010, the offence with which they are charged was not bailable under the law. On the persuasive authority of this court in Republic vs. Joseph Wambua Mutiga and three others Mr. Gitonga urged that the application be denied. (4) There can be no doubt that the accused persons have a constitutional right under Article 49(1)(h) of the Constitution to be

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