Case ID:40460

Willy Munyoki Mutunga v Republic [1982] eKLR

Case Metadata

Case Number:

Miscellaneous Criminal Application 101 of 1982

Parties:

Willy Munyoki Mutunga v Republic

Date Delivered:

30 Jun 1982

Case Class:

Criminal

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Surrender Kumar Sachdeva

Citation:

Willy Munyoki Mutunga v Republic [1982] eKLR

Advocates:

Mr Chunga, State Counsel, for the Respondent.

Court Division:

Criminal

Parties Profile:

Individual v Government

County:

Nairobi

Advocates:

Mr Chunga, State Counsel, for the Respondent.

Case Summary:

Mutunga

v

Republic

High Court, at Nairobi June 30, 1982

Sachdeva J

Miscellaneous Criminal Application No 101 of 1982

Bail

– pending trial – applications for – principles governing such applications – factors to be considered -objection to granting of bail on the grounds that investigations are incomplete – when investigations can be said to be complete.

Constitutional law

- fundamental rights and freedoms - protection of -when fundamental rights can be subject to limitation.

The applicant applied and was denied bail pending trial by the chief magistrates court on the ground that investigations were incomplete. He renewed his application at the High Court arguing that he had been in custody for over three weeks.

Held:

1. In a bail application it is proper for the court to take account of the gravity of the offence.

2. The mere finding of the seditious publications in the possession of the applicant did not mean that the investigations were complete and that there could be no real necessity of any further investigations. Further investigations were still required on the origin, authorizing, printing, publication and circulation of the said documents.

3. The constitutional right to protection of fundamental rights and freedoms of an individual are subject to limitations designed to ensure that the enjoyment thereof by any individual does not prejudice the rights and freedoms of others or public interest.

4. (

Obiter

) Rights exist and are enforceable, only where law and order prevails. Once peace and stability disappear such rights also go overboard without a whimper.

5. (

Obiter

) Courts do not operate in a vacuum and cannot be oblivious of the fact that some subversive elements have crept into society and the state cannot ignore them.

Application refused.

Cases

1.

Nganga v Republic

[1985] KLR 451

2.

Kikuyu, Jonesmas Mwanza v Republic

Miscellaneous Criminal Application No 78 of 1981 (unreported)

3.

Opinder Singh Nauhl v Republic

Miscellaneous Application No 178 of 1981 (unreported)

Statutes

1. Penal Code (cap 63) section 52(2)

2. Constitution of Kenya chapter V; sections 70, 77

Advocates

Mr Chunga, State Counsel, for the Respondent.

History Advocates:

One party or some parties represented

Case Outcome:

Application Refused.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CRIMINAL APPLICATION NO. 101 OF 1982

WILLY MUNYOKI MUTUNGA................................................................APPLICANT

VERSUS

REPUBLIC.........................................................................................RESPONDENT

RULING

The applicant was arrested on June 10, 1982 and charged before the learned Senior Resident Magistrate, Nairobi on June 12, 1982 for being in possession of seditious publications contrary to section 52(2) of the Penal Code. He pleaded not guilty and applied for bail, which was refused at that stage. On June 18, 1982 he appeared before the learned chief magistrate when the applicant’s counsel renewed the bail application but the same was again turned down. He now seeks the assistance of the High Court.

Briefly it is urged on his behalf that he has been in custody now for 18 days, that the charge was a simple one and once the prosecution had found a prohibited publication in his possession there was hardly any necessity for further investigations, that in any event he has already been in custody for almost 3 weeks and that should be sufficient time to complete any investigations, that the mere fact that the Attorney-General’s consent to prosecute had not been forthcoming was no reason to deny him bail that under the Kenya Constitution a person charged with a bailable offence as the present one is entitled as of right to bail if his trial is not held expeditiously, that fundamental rights of the individual are enshrined in chapter 5 of the constitution, and they include the right to liberty, that such a right did not depend upon good-will, permission benevolence or charity, that the Criminal Procedure Code makes bail available for all offences except those punishable by death and even in respect of those the High Court has power to grant bail, that the charge of possession of seditious publications was not serious as it only carried the maximum sentence of 7 years imprisonment which was same in respect of a number of other offences for which bail is granted as a matter of course, that the learned chief magistrate erred in holding that the offence was very serious touching the stability of the country, that if the legislature intended it to be serious and grave it would have prohibited bail for the same, that there were 2 cases of 1952 and 1960 respectively in which bail was infact granted for a similar offence and the circumstances of those cases were no different from the present, that the primary consideration that the applicant would turn up for his trial was not even considered by the learned chief magistrate,that in view of the applicant’s position, status, antecedent and marital standing there is absolutely no reason to believe that the applicant will abscond and that the applicant was willing to abide by any conditions imposed by the court plus offer substantial sureties.

Mr Chunga, the principal state counsel, opposed the application on behalf of the Republic. He submitted, in brief, that the mere finding of the prohibited publication in possession of the applicant did not mean the end of prosecution’s investigations and matters like the possible sources , origin, distribution and authorship of such documents needed thorough and careful investigations in the interest of the security of the State, that the offence is serious and grave is evident from the very heading of the document recited in the charge-sheet, that in determining whether an accused will turn up for trial the nature of the offence, gravity of the charge and all its circumstances have to be considered and that the constitutional provisions are not mandatory where the interest of justice is otherwise.

Mr Chunga referred me to those recent rulings of the High Court on the same issue: Miscellaneous Criminal Application No 61/81 George

Kamau

Nganga v Republic

(Chesoni J), and Miscellaneous Criminal Application No 78/81

Jonesmas Mwanza Kikuyu v Republic

(Muli J), and Miscellaneous Application No 178/81

Opinder Singh Nauhl v Republic

(Hancox J) in all of which respective applications for bail pending trial were refused by my learned brothers although in

Nauhl’s

case the accused had been in custody for about 10 months at the time of the hearing of the application.

The principles governing such applications have been considered by my brothers in the aforesaid applications at great detail and I need not repeat them, except to state with all respect, that I am in full agreement with them.

It is true that the protection of fundamental rights and freedom of the individual is contained in Chapter V of the Constitution but it is, I think, worth emphasising that section 70 of the constitution, with which the Chapter V begins, makes such rights

subject to respect for the rights and freedoms of others

and for the public interest and again, subject to

limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest

. The underling is mine.

The learned chief magistrate, in my view, was quite correct to take into account the seriousness and gravity of the charge. As Mr Chunga has pertinently pointed out Constitutional rights cannot be considered in isolation. It cannot be stressed too often that such rights exist and are enforceable, only where law and order prevails. Once peace and stability disappear such rights also go overboard without a whimper.

Furthermore, as again properly submitted by Mr Chunga, it is too simplistic an approach to argue that once the prosecution had found a prohibited publication in the applicant’s possession, there could be no real necessity of any further investigations: the origin, authorship, printing, publication, circulation etc of a publication headed “J M Day Solidarity: Don’t Be Fooled reject the Nyayos” are all matters requiring full and thorough investigations.

Courts do not operate

in vacuu

and cannot be oblivious of the fact that some subversive elements have unfortunately crept into the university and the State cannot simply ignore them.

In all the circumstances of this application, I am satisfied that the learned chief magistrate quite properly refused to grant bail to the accused, and I am further satisfied that as matters stand it is not a fit case to admit the accused to bail at the present time and I refuse the application.

I would, however, like to stress here that nothing in this ruling should be construed as indicative of the applicant’s guilt. An accused person is entitled to plead not guilty (see section 77 of the Constitution) and it is incumbent upon the prosecution to prove his guilt beyond a reasonable doubt.

Dated and Delivered in Nairobi this 30th day of June 1982.

S.K.SACHDEVA

JUDGE