(PHOTO): Jack Alexander Marrian and Roy Mwanthi when they appeared in court yesterday.
By PATRICK MAYOYO
A Briton and his Kenyan counterpart accused of trafficking cocaine worth Sh589 million will know whether they will be released on bond on Friday.
Justice Luka Kimaru issued the directive after a hearing an application in which the Director of Public Prosecutions challenged the release on bond of Jack Alexander Marrian and Roy Mwanthi by the Chief Magistrate’s Court in Kibera.
Mr Marrian and Mr Mwanthi were granted a Sh70 million and Sh60 million bond respectively.
Trial magistrate Derrick Kuto had stated that prosecution did not convince him that the two should be denied bail.
The Director of Public Prosecutions (DPP), on Wednesday, through State lawyer Duncan Ondimu, said the trial court erred in granting the accused bail as the offences they faced are serious and carry stiff sentences.
Lawyers Andrew Wandabwa and Nicholas Ombija, who represented the accused, opposed the application to cancel the bond.
Mr Wandabwa said the argument by the prosecution that the cost of the intercepted drugs and the life sentence tied to the case increased the chances of the accused being flight risks were unfounded.
He said not a single submission had been made by the prosecution on how the trial court might have misguided itself in granting the accused bail adding that the burden fell on the State to provide grounds on which bond should never have been granted which they had failed to do so.
“The State did not provide an affidavit before the trial court justifying why the accused should not have been granted bond,” he said.
Mr Wandabwa said an accused person has a right to bail and the court has discretion to grant such bail and this is not determined by the seriousness of the offence or severity of the sentence.
He said the fact that Mr Marrian was a British national cannot be used to grant a stay pending appeal because he has been a resident in Kenya since the age of 4 years old and his father and mother are Kenyan citizens.
“It is therefore unfair for the prosecution to now claim the accused is a flight risk yet the police granted him a free bond after his arrest and he complied with the bond conditions,” he said.
Mr Ombija opposed the grant of stay pending appeal saying section 379 (a) of the law the prosecution had invoked was not applicable because the bail was granted by the Chief Magistrate’s court yet the cited section of the law referred to matters heard at the High Court.
The former judge said Mr Mwanthi who is a clearing and forward agent was not the consignee of the goods in question at the time of his arrest and he had not even cleared the containers alleged to have contained cocaine.
“There is no valuation report filed in both the lower court or here to confirm the value of drugs and neither is there a laboratory report confirming the substance found in the containers is indeed cocaine,” Mr Ombija.
On August 8, Mr Marrian was released on a Sh70 million bond with two Kenyan sureties of a similar amount. He was to be remanded at Industrial Area Prison pending processing of the bond.
Mr Marrian and Mr Mwanthi were charged separately with trafficking cocaine valued at $5.98 million. They allegedly trafficked the cocaine concealed in a container at Kilindini Port in Mombasa on July 29.
The prosecution said Mr Marrian is a director of Mshale Uganda Limited while Mr Mwanthi is a director of Inland Africa Logistics Limited.
The prosecution opposed Mr Marrian’s application for bond, saying he was a flight risk. The illegal drugs were allegedly concealed as sugar from Brazil en route to Kampala.
Mr Marrian was detained at the Kileleshwa Police Station until August 8 when the ruling on his application for bail was issued. Mr Mwanthi was detained at the Gigiri Police Station.
The court on Monday allowed the prosecution to appeal the ruling on bond but declined to stay the ruling. The court further ordered the accused to deposit his passport in court.
He will also be reporting to the investigating officer once every week. Mr Mwanthi, has also been released on a Sh60 million bond with two Kenyan sureties of similar amount. He will also deposit his passport in court. Prosecutors said the cases will be consolidated.
Magistrate Derrick Kuto, in his ruling, stated prosecutors did not convince him that the two should be denied bail. Mr Kuto however, noted that the offence was serious and deserved stringent bond terms.
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