[2023] KEHC 23532 (KLR)
The court found that there were no compelling reasons to deny bond to any of the accused persons. Allegations against the 1st accused regarding prior convictions were unsubstantiated and unsupported by evidence. The concern that the presence of the accused in the community would traumatize the victim's family was...
Source-derived case information.
- Citation
- [2023] KEHC 23532 (KLR)
- Parties
- Applicant: Republic; Defendant: Paul Muvea Ndungai; Defendant: Brian Kyalo Peter; Defendant: Dickson Mulwa Muoki
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E004 of 2021
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond terms confirmed and varied.
- Judges
- TM Matheka
- Legal Topics
- Murder Charge, Bail and Bond, Flight Risk, Surety Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Paul Muvea Ndungai
Defendant
Brian Kyalo Peter
Defendant
Dickson Mulwa Muoki
Defendant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons should be granted bond pending trial.
- 2 Whether allegations against the 1st accused justify denial of bond.
- 3 Whether the presence of the accused in the community justifies denial of bond.
Ratio Decidendi
The court found that there were no compelling reasons to deny bond to any of the accused persons. Allegations against the 1st accused regarding prior convictions were unsubstantiated and unsupported by evidence. The concern that the presence of the accused in the community would traumatize the victim's family was not sufficient to deny bond, as conditions could be imposed to mitigate this. The accused were not considered flight risks and were unlikely to interfere with witnesses, as most had already testified. The bond terms previously set were reasonable, and the court varied the terms to allow each accused to avail two sureties of Ksh 75,000 each.
Court Disposition
Bond terms confirmed and varied.
Orders
- Each accused may be released on bond of Ksh 150,000 with two sureties of Ksh 75,000 each.
- Accused persons to stay away from the victim's village during the pendency of the matter.
Full Case Text
Judgment text and source record
30 paragraphs
Republic v Ndungai & 2 others (Criminal Case E004 of 2021) [2023] KEHC 23532 (KLR) (11 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23532 (KLR)
Republic of Kenya
In the High Court at Makueni
Criminal Case E004 of 2021
TM Matheka, J
October 11, 2023
Between
Republic
Prosecution
and
Paul Muvea Ndungai
1st Accused
Brian Kyalo Peter
2nd Accused
Dickson Mulwa Muoki
3rd Accused
Ruling
1. The three accused persons are jointly charged itch murder c/s 203 as read with s. 204 of the Penal Code. It is alleged that on the 26th January 2021 at Katulie Village Kilungu Sub County Makueni County they jointly murdered Kakui Ndiso.
2. They took plea on the 15th July 2021 and pleaded not guilty.
3. No bond was granted.
4. There is nothing on record to show that it was opposed.
5. The matter has now been caught up in the boycott by members of Law Society of Kenya who have taken up pro bono matters due to their differences with the Office of the Chief Registrar Judiciary, prompting a review of bond terms.
6. During the prison visit on the 11th of August 2023, the accused person’s asked for bond. There was no objection and bond terms were set out at Ksh 150,000 with a surety of a similar amount for each. In addition, I sought a Bail Report and the same was filed on 13th September 2023.
7. With respect to the 1st accused, there are numerous allegations against him. It is alleged that he is an ex-convict for two offences, creating disturbance and robbery with violence. However, no specific time was mentioned as to when he may have served time and no case file was quoted. There was nothing on the record to support this. The family is ready to stand surety for him. The family of the victim state that they will be traumatized if they see him around. That cannot be a reason to deny him bond because he can be ordered to stay away from the village during the pendency of the matter. He is not a flight risk, will not interfere with witnesses as many of them have testified.
8. The 2nd accused, he has no allegations of past criminal life and the family is ready to sand surety for him. He is not a flight risk, will not interfere with witnesses as many of them have testified.
9. For the 3rd accused the report is similar to that of the 1st accused except there are no allegations of past criminal history.
10. It is noteworthy that for 1st and 3rd accused the report states that their presence in the community will re traumatise the victim’s family yet the same is not said of the 2nd accused despite the fact that they face a joint charge of murder. No explanation is made in the reports why this is so, and it is difficult for the court to understand the distinction.
11. Having considered the report for each accused person, I find that the bond terms granted are reasonable and the same are retained. The Variation is that they can avail two sureties each of Ksh 75000. Orders accordingly.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 11TH OCTOBER 2023. .......................................MUMBUA T. MATHEKAJUDGECA MwiwaAccused presentKazungu for state