Republic v Simon Kihara Mungai [2021] KEHC 1740 (KLR)
- Citation
- [2021] KEHC 1740 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- NA Matheka
- Case number
- Criminal Case 10 of 2018
- Language
- English
More details
- Court
- High Court
- Panel
- NA Matheka
- Case number
- Criminal Case 10 of 2018
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that while the accused has a constitutional right to bail and there are no compelling reasons such as flight risk or threat to the victim's family to deny bail, the Probation Officer's report failed to address the critical issue of the accused's mental illness and the family's preparedness to manage his condition if released. The court determined that it would be improper to grant bail without a comprehensive assessment of the accused's mental health needs and the family's ability to provide necessary care and supervision. Therefore, the court directed the Probation Officer to conduct a further assessment focusing on these aspects before a final decision on bail can be made.
Court disposition
Further assessment ordered before bail determination.
Orders
- Probation Officer to conduct a further assessment addressing the accused's mental health needs and family preparedness to manage his condition.
- Bail determination deferred pending receipt of the new report.
02
Material facts
Parties
Republic
Respondent Counsel: Ms MurungaSimon Kihara Mungai
ApplicantAmounts and remedies
- Bond Amount Previously Set: KES 300,000
03
Procedural history
Posture
Criminal Case / Ruling on Bail
04
Questions and positions
Legal issues
- 01
Whether the accused should be released on bail pending trial despite his mental health condition.
- 02
Whether the Probation Officer's report adequately addresses the accused's mental health needs and family preparedness.
Party arguments
- Applicant
- The accused, Simon Kihara Mungai, seeks release on bail. He has no criminal record, is not a flight risk, and his family is willing to stand surety. The chief has no adverse reports against him, and he is not considered a threat to the victim's family due to geographical separation.
- Respondent
- The prosecution, supported by the victim's family, opposes bail on the grounds that the accused's release would burden the victim's family, who are already caring for the deceased's children. There is also concern regarding the accused's mental health and the lack of clarity on how his condition would be managed if released.
05
Court’s reasoning
Legal principles
- 01
Article 49(1)(h) of the Constitution of Kenya
The right of an accused person to be released on bail unless there are compelling reasons not to grant bail.
- 02
Section 162 of the Criminal Procedure Code; relevant case law on bail and mental health
Consideration of the accused's mental health status in determining suitability for bail and the need for adequate arrangements for treatment and supervision.
06
Ratio, limits and disposition
Ratio decidendi
The court found that while the accused has a constitutional right to bail and there are no compelling reasons such as flight risk or threat to the victim's family to deny bail, the Probation Officer's report failed to address the critical issue of the accused's mental illness and the family's preparedness to manage his condition if released. The court determined that it would be improper to grant bail without a comprehensive assessment of the accused's mental health needs and the family's ability to provide necessary care and supervision. Therefore, the court directed the Probation Officer to conduct a further assessment focusing on these aspects before a final decision on bail can be made.
Obiter and limits
- It is unfortunate that the Probation Officer did not address the accused's mental illness and the family's preparedness to manage it.
- The right to bail must be balanced with considerations of public safety and the accused's well-being.
Court disposition
Further assessment ordered before bail determination.
- Probation Officer to conduct a further assessment addressing the accused's mental health needs and family preparedness to manage his condition.
- Bail determination deferred pending receipt of the new report.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NUMBER 10 OF 2018
REPUBLIC.........................................................................PROSECUTOR
VERSUS
SIMON KIHARA MUNGAI......................................................ACCUSED
R U L I N G O N B A I L
1. On the 13th February 2018 the accused herein was charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on 11th February 2018 at Mukinyai Village Mutamaiyo Location in Molo Sub County within Nakuru County murdered Mary Nyanjau.
2. Plea was taken on 27th February 2019, where he responded to the charge as follows;
“It is true that I killed her but I did not intend to kill her.”
3. On 23rd July 2019 he was granted bond of Kshs. 300,000/= with one surety of the same amount.
4. I took over the matter on 8th October 2019 to date. It has never taken off.
5. I asked for Bail Assessment Report from Probation and After Care Services (PACS). It was filed on 13th September 2021. The family of the victim are opposed to the accused being released on bail, because of the burden that was left on them taking care of the deceased’s children. The father of the accused together with his brother, have offered themselves to stand surety for the accused.
6. The accused does not have a criminal record, is not a flight risk and except for his anger, the chief did not have any adverse reports against him. He is not a threat against the victim’s family as they live far off in Turi, Molo Sub County while his home is in Mutamaiyo.
7. His mental assessment report came back with an assessment being mentally unsound and was found to be suffering from a psychotic disorder, mild mental retardation and recommended for admission and treatment in a psychiatric chit.
8. A follow up report dated 13th September 2018 indicated he was unwell, plea was taken.
9. However the illness did not go away because every so often he was said to be unwell. On 22nd February 2021 he was said to be undergoing treatment for psychiatric problems. He was absent on 5th March 2021, 18th May, 2021, 8th June 2021 and 16th August 2021 on account of the psychiatric illness.
10. While it is the right of the accused to be released on bail, it is also clear that he suffers from a mental illness for which he is undergoing treatment while in custody. It is unfortunate that the Probation Officer did not speak about this, and the manner in which the family was going to manage the same. It is not clear whether this mental illness contributed to the committal of the offence or it makes him a danger to himself and society.
11. While the accused may be released on bond, I think it is necessary for the Probation Officer to speak to the accused person’s mental illness and family preparedness to deal with the same. For this reason, I find that though the report is helpful with respect to the family, readiness to receive him back, there is no assessment of his needs for treatment.
12. To that end the PACS report is not very helpful, and it is only proper that the Probation Officer goes back to the family and the community and address this particular issue.
Dated, Signed and Delivered this 5th day of November, 2021.
Mumbua T. Matheka
Judge
In the presence of;
Edna Court Assistant
Ms Murunga for state
Accused present virtually
Mr. Ndungu – Probation Officer
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