[2022] KEHC 140 (KLR)

Republic v Kyalo (Criminal Case E011 of 2020) [2022] KEHC 140 (KLR) (15 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 140 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E011 of 2020

MW Muigai, J

February 15, 2022

Between

Republic

Prosecution

and

Martin Munyao Kyalo

Accused

Ruling

1. The accused person herein Martin Munyao Kyalo was charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 14th day of November, 2020 at Mataka village, Kamwala Sub-location, Mwala Location, Mwala Sub-County within Machakos County murdered Kiilu Muia.

2. The Accused person (Martin Munyao Kyalo) was arraigned in Court on 20/11/2020. The Court ordered that the accused be escorted to Machakos Level Five Hospital for mental assessment.

3. Several mental assessments were conducted at Machakos Level 5 Hospital one dated and filed on 2nd December, 2020 which remarks were indicated as “not fit to plead.” The second one was conducted on 13th January, 2021 also indicated that the Accused person was “not fit to plead.” A third mental assessment was conducted on the accused person dated and filed on 23rd June, 2021 indicated that the accused was currently stable on treatment and he was “fit to plead.” A further mental assessment dated 10th November, 2021 and filed in court on 12th November, 2021 indicated that the accused person herein is “fit to plead.”

4. On 2nd December, 2021 plea was taken and the accused person herein pleaded Not Guilty.

5. Mr. Mutava holding brief for Mr. Nthiwa advocate for the accused person asked the Court to admit the accused person on reasonable bail terms.

6. The Court ordered for a Pre-bail report and sought from the DPP whether there are any compelling reasons not to grant bond.

7. The Court has considered the DPP Officer Presentation that there was no objection to the grant of bail/bond and/or compelling reasons to refuse to grant of bail/bond.

8. The pre-bail report dated 26th January, 2022 and filed in court on 9th February, 2022 was conducted and it was indicated as follows:a.That the accused person (Martin Munyao) is a youthful man aged twenty five years, single and engaged in peasant farming to earn a living as well as support his parents. He has some mental challenges which led him to drop out of National Youth Service and that he is undergoing treatment at Machakos Level Five Hospital.b.That the deceased’s family is still bitter as the incident is still fresh in their minds and they are opposed to accused being granted bond as there is a threat to the safety of both the accused and deceased’s family members.c.That the community members and local administration report was negative due to the public outcry caused by the incident given the magnitude as well as cruelty involved and his unpredictable mental condition.d.That the accused mental instability and age bracket are strong point for granting bond but the hostility between the two families and their proximity poses a security threat to both families currently.e.That the current home situation is very delicate given the magnitude of the charges, the hostility, prevailing in the community.

9. In conclusion the report is not favourable for the accused person but may be considered at a later date.

10. Article 49(1)(h) of the Constitution provides that: -An accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.DETERMINATION

11. The considerations in determining whether or not to grant bail are set out inKenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail as follows:The following procedures should apply to the bail hearing:Clause 426a.The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:i.That the accused person is likely to fail to attend court proceedings; orii.That the accused person is likely to commit, or abet the commission of, a serious offence; oriii.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; oriv.That the accused person is likely to endanger the safety of victims, individuals or the public; orv.That the accused person is likely to interfere with witnesses or evidence; orvi.That the accused person is likely to endanger national security; orvii.That it is in the public interest to detain the accused person in custody.

12. There is no evidence tendered in Court at this stage to suggest or disclose possibility of Accused person failing to attend Court if set out on bond or committing a serious offence or interfering with witnesses and/or endangering safety of victims, individuals or the public. The mental assessment report disclosed the accused person has had mental health issues and may require further treatment.

13. Bail/bond is a Constitutional right under Article 49 (1) of CoK 2010. At this point there are no compelling reasons pointed out by the DPP to prevent granting of bail/bond to the accused person.DISPOSITION

14. In the result, I find merit in the application of releasing the accused person on bond pending trial and make the following orders:-a.The Accused person is ordered released on bond of kshs.800,000/= plus one surety of like amount.b.The Accused person shall not contact or interfere with the witnesses or cause any danger to their safety or the evidence.c.The Accused shall attend court at all times as directed and/or required.

DELIVERED SIGNED & DATED IN OPEN COURT ON 15THFEBRUARY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGEIn The Presence Of:Martin Munyao Kyalo – Present VirtuallyMwongera - For The StateGeoffrey – Court Assistant