Republic v Kaunga & another (Criminal Case E025 of 2026) [2026] KEHC 13279 (KLR) (1 September 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL CASE NO. E025 OF 2026** REPUBLIC..……….…………………………………….…...….. PROSECUTOR VERSUS EDWIN MUTHONI KAUNGA ………….................................. ACCUSED AND MIKE MBUVI SONKO…………………………………. INTERESTED PARTY **RULING** 1. **Edwin Muthomi Kaunga,** the accused/Applicant took out the motion dated 26th June, 2026 and sought for the following orders: 2. ***Spent*** 3. ***That this Honourable court be pleased to determine, before ethe commencement of the trial or before any further participation in these proceedings, whether Mr. Mike Mbuvi Sonko possesses the requisite legal standing to participate in these proceedings under the Constitution, the Victim Protection Act, 2014 and the Victim Protection (General) Rules, 2022.*** 4. ***That pending such determination, this honourable court be pleased to direct that Mr. Mike Mbuvi Sonko shall not participate in these proceedings in any capacity whatsoever unless and until this honourable court grants leave upon being satisfied that he qualifies as a victim or a lawful victim representative under the law.*** 5. ***That this honourable court be pleased to declare that any participation by persons other than the Director of Public Prosecutions, the accused and duly recognised victims or victim representatives shall strickly comply with the provisions of the Victim Protection Act, 2014 and the Victim Protection (General) Rules, 2022.*** 6. ***That this honourable court be pleased to issue appropriate directions regulating the nature, scope and extent of victim participation in these proceedings so as to safeguard the Accused’s constitutional right to a fair hearing under Article 50 of the Constitution.*** 7. ***That this honourable court be pleased to direct that any person claiming to be a victim, victim representative, or otherwise seeking to participate in these proceedings pursuant to the Victim Protection Act, 2014, shall before being permitted to participate, file a formal application supported by an affidavit settling out the legal capacity in which such person seeks audience, the factual and legal basis stablishing that they quality as a victim or victim representative within the meaning of section 2 of the Victim Protection Act, 2014 the nature and extent of the participation sought, the prejudice likely to be suffered if such participation is denied, and demonstrating compliance with the Constitution, the Victim Protection Act, 2014, and the Victim Protection (General) Rules, 2022, whereupon this honourable court shall determine such application before granting leave to participate in these proceedings.*** 8. ***That this honourable court be pleased to reaffirm that the Accused is presumed innocent until proved guilty in accordance with Article 50(2) (a) of the Constitution and direct that these proceedings shall be conducted strictly on the evidence lawfully adduced before court.*** 9. ***That this honourable court be pleaded to issue appropriate directions discouraging prejudicial public commentary, publications or broadcasts by persons participating in or associated with these proceedings that are capable to undermining the Accused’s constitutional right to a fair trial or interfering with the proper administration of justice.*** 10. ***That this honourable court be pleased to make such further or other orders as it may deem fit for the ends of justice.*** 11. ***That costs be in the cause.*** 12. **Mike Mbuvi Sonko** swore a replying affidavit he filed to oppose the application. 13. This court gave directions to have the application disposed of by written submissions. Parties were also invited to make oral highlights. 14. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have further considered the rival written and oral submissions. 15. It is the submission of the accused/applicant that Article 50 of the Constitution guarantees every accused person the non-derogable right to a fair trial including the right to be presumed innocent until the contrary is proved. 16. The applicant also pointed out that the right to a fair trial under Article 25(c) is absolute and cannot be limited. The applicant further stated that the victim participation in Criminal proceedings is statutory and is governed exclusively by the Victim Protection Act, 2014 and the Victim Protection (General) rules, 2022. 17. It is pointed out that under S. 2 of the Victim’s Protection Act, only a person who qualified as a victim or lawful representative recognized under the Act may seek participation in criminal proceedings. 18. The applicant further argued that the Victim Protection Act, 2014 and the Victim Protection (General) rules 2022 contemplate judicial oversight over victim participation and therefore the court bears the responsibility of satisfying itself that any person seeking audience as a victim or victim representative possesses the requisite legal standing before being permitted to participate in criminal proceedings. 19. It is the submission of the applicant that **Mr. Mike Mbuvi Sonko** has actively associated himself with the instant proceedings and has expressed an intention to participate therein notwithstanding that his legal capacity to do so has neither been disclosed nor determined by this court. 20. The applicant further argued that unless this court determines the legal basis upon which **Mr. Sonko** purports to participate, the proceedings risks departing from the statutory framework governing victim participation. 21. It is also pointed out by the applicant that Mr. Sonko has on numerous occasions through social media and other public platforms publicly commented on the merits of this case and repeatedly portrayed the applicant as being guilty notwithstanding that the trial is yet to commence and that such public pronouncements are capable of undermining the Constitutional presumption of innocence, eroding public confidence in the administration of justice and thus exposing these proceedings to external pressure. 22. It is further the submission of the applicant that it is the interest of justice that this court regulates the participation of all persons in these proceedings and safeguards the integrity, fairness and impartiality of the trial process. The applicant also argued that the Interested party/Respondent has not demonstrated the legal basis for his participation and that Section 2 of the Victim Protection Act clearly identified who qualifies as a victim or a lawful representative. 23. The Interested Party opposed the application arguing that the same is misconvinced, bad in law, defective and an abused of the process of court. Mr. Mike Sonko stated that after the death of Anita Mugweru, he together with Florics of Hope Africa plus the maternal Family of the deceased provided consistent material support to the deceased’s minor child like paying her school fees, providing basic needs and coordination of community support of the bereaved family. 24. He averred that he has since then formed a strong bond of trust with the minor. He further argued that he has participated in several criminal trial as an ambassador of social justice, which participation is yet to cause any prejudice on the accused person. 25. The interested party further stated that section 2(1) of the Victim Protection Act, 2014 defines the ‘victim’ widely as any natural person who suffers injury, loss or damage as a consequence of an offence. He pointed out that the victim is self-evidently a valuable victim within the meaning section 2(1) having suffered profound loss as a direct consequence of the offence with which the accused stands charged. 26. The Interested Party is of the opinion that the definition is wide enough to include a dependant of a deceased victim, like in this case where the deceased was the sole breadwinner of the family and her minor child had lost her mother and the primary caregiver as a direct consequence of the offence charged. 27. He argued that his participation in these proceedings ought to continue for the purpose of welfare related matters pertaining to the minor child under his care. He further stated that he does not purport to represent the prosecution or to conduct the prosecution’s case and has in the past acted independently of the Office of the Director of Public Prosecutions. 28. The Interested Party averred that the publications or screenshots annexed to the supporting affidavit are in the main, expressions of sympathy for the minor and her family and accounts of matters report to him which were not intended to besmirch this court’s integrity or violate the principle of presumption of innocence. 29. The Interested Party also argued that this case being a matter of public interest particularly on the weighty issue of gender-based violence and the protection of children, the move by the accused person to suppress his personal views is tantamount to a blanket suppression of matters of public importance. 30. The Interested Party further argued that the accused vide the aforesaid motion seeks an order restraining public commentary on these proceedings which in substance is, a gag order which runs contrary to the constitutional presumption in favour of open public criminal trials under Article 50(1) of the Constitution and which is not shown to fall within any of the narrow exceptions contemplated under Article 50(8) of the Constitution. 31. It is the averment of the Interested Party that there is no evidence before this court as what prejudice the accused has suffered from the impugned publications. 32. The prosecution indicated that it does not intend to participate in the motion dated 26/6/2026. 33. It is further submission of the Interested Party that to throw out the Interested Party from these proceedings is tantamount to throwing out the minor child out from the proceedings. This court was urged to treat the Interested Party as a guardian. It is also stated that the Interested Party meets the criteria set by the Supreme Court in the **Muruatetu & Another Vs Republic & 3 others [2016] KESC 12 (KLR).** 34. Having considered the material placed before this court, two issues have emerged for determination. **First** is whether the interested party has the legal capacity to participate in these proceedings. **Secondly,** the propriety of the order restraining public commentary as sought in prayer 8 of the instant motion. 35. As regards the first issue as to whether the Interested party posses the legal capacity to participate in these proceedings, I have already set out the rival arguments presented before this court. 36. Having considered the rival submissions, this court has come to the following conclusions. First, it is crystal clear that under section 2 of the Victim’s Protection Act, the law clearly states who would qualify as a victim or lawful representative as follows: 37. **Relative of the deceased** 38. **Dependant of the deceased** 39. **Personal representative** 40. **Executor or administrator of the estate** 41. **Guardian appointed by any court** 42. It is the submissions of the interested party that the Victim Protection Act was enacted to give effect to Article 50(9) of the Constitution and is properly read as facilitative rather than a ceiling upon the participation of persons with a genuine stake in protecting a vulnerable person caught up in criminal proceedings. 43. The Interested Party beseeched this court to broaden the definition of victim given in section 2(1) of the Victim Protection Act to mean any natural person who suffers injury loss or damage as a consequence of the offence. This court was further urged to find that the minor child in these proceedings is within the class, given her age. 44. The Interested Party further cited section 8(6) of the Victim Protection Act which provides that a vulnerable victim unable to act in person shall in the case of a child, have the parent, guardian or legal representative to act on behalf. This court was urged to allow the Interested Party to assume responsibility for minor’s welfare pending the formal guardianship determination. 45. It is not in dispute that the Interested Party has heavily relied on the fact that he has voluntarily supported the minor child after the death of her mother and had developed a very strong bond with her. 46. This court commends the Interested Party for being there for the minor at the hour of need. This court finds the good intentions though commendable cannot substitute legal requirements set under the Victim’s Protection Act. The Interested Party has demonstrated compassion and philanthropy. This court cannot broaden or expand the definition of a ‘victim’ beyond what is given under section 2(1) of the Victim Protection Act. To do that would open floodgates of unimaginable proportion that would clog the criminal justice system. 47. The proceedings before this court relates to a murder trial. They do not concern guardianship maintenance, parental responsibility, custody and or welfare of a child. Legal standing can only arise from the Constitution and statute. In the end I find that the Interested Party has not demonstrated the legal basis to participate in these proceedings. 48. This court therefore directs that Hon. Mike Mbuvi Sonko shall not participate in these proceedings since he has failed to demonstrate that he is a victim or a lawful victim representative under the Victim Protection Act. 49. The second issue to be determined is whether this court should issue appropriate directions discouraging prejudicial public commentary, publication or broadcast by persons participating in or associated with the proceedings before this court. 50. I have already outlined in detail the rival arguments put in support and against the order sought herein. The Interested Party has urged this court to resist the temptation of issuing a blanket order to restrain commentaries about a case that has attracted legitimate public interest. He further argued that a blanket gag order is neither necessary nor proportionate. It is clear that the Interested Party does not deny making public commentary touching on the case before this court. 51. Copies of these commentaries are attached to the supporting affidavit of the applicant. I am persuaded by the arguments put forward by the interested party that this court should not issue a blanket gag order on public commentaries over a case that is ongoing in public. However, the court cannot permit any person to make public commentaries which appear to be intended to influence the outcome of the case or are comments targeting the merits of the case. 52. In the circumstances of this case, this court gives the following directions as appropriate. First, there should be no publication or commentary disclosing the minor child identity and image. Secondly, there should be no further public reference to the merits of the information and or charge expressed as guilty. Thirdly, there should be no sensational reporting of the proceedings that may be prejudicial to the case or undermines the accused’s presumption of innocence. Fourthly, there should be no public commentary or publication that is seen to interfere with the fair administration of justice. 53. In the end the motion dated 26th June, 2026 is allowed to the extent determined hereinabove. Each party to bear their own costs. **Dated, signed and delivered this 1st day of September, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Ruto C/A Gakuhi and Nelima for Accused Chiwayah holding brief for victim/Applicant Baya for the State