RULING (Bond Review for 3rd Accused)
1. The three accused persons are charged with murder contrary to section 203 as read with section two or four of the penal code. The particulars are that on 28th April 2024 at around 0100 hours at Ngiluni Village Mulela location Mukaa sub county Makueni County jointly murdered Rose Mwende.
2. The first accused is the mother to the second and third accused
3. They desist is a child of the third accused.
4. They pleaded not guilty and bond was set at KSH 150000 with a surety of the same amount for each or two sureties each of 75,000 shillings.
5. During one of the mentions it came to the attention of the court that the 3rd accused had a 1 month 3 week old baby who was born when she was in custody .
Section 145. of the Children Act , 2022 states Proceedings in respect of children in need of care and protection
(1) Any person who has reasonable cause to believe that a child is in need of care and protection may report the matter to the nearest authorised officer, who shall take such steps as may be necessary for securing a Court order for the care and protection of the child in a place of safety or other alternative care in accordance with this Act.
6. That baby immediately became a child in need of care and protection in view of the provisions of section 144 (f) of the Children’s Act. A child who who is in the company of a parent or guardian who is detained, held in custody, in prison or in remand;
7. I directed the PACS officer to avail a bail review report and the Children Officer to open a P& C file for the child and provide the court with the children officer’s report. This was in an effort to try and find what was in the best interest of the child in these circumstances
8. The children officers report states that baby DA was born on 6th February 2025 at the Makueni County Referral Hospital
9. The children officer noted that The Remand prison environment presents a serious risks to the child’s well being and that is no family member was willing to take custody of the child due to the young age of two months and the need for exclusive breastfeeding for the first six months .
10. The other sibling of this child is six years old was said to be living with a great grandmother who is 90 years old .
11. The husband to the accused person who lives in Nairobi would not be able to live with a child because of the tender age of the child. The accused’s sister works as a house manager in Nairobi and also would not be able to live with a child.
12. The prison authorities are of the view that the child is at risk of infection due to poor sanitation and limited access to proper paediatric health care;that the mother has limited access to a balanced diet affecting the quality of breastfeeding and overall infant nutrition; It was further noted that the prison remand lacks a safe clean and quiet space suitable for infant care; That the child is exposed to an adult correctional environment which is not conducive to early childhood development ;That the lack of adequate beddings and clothing puts the child at risk of discomfort and illness.
13. The report indicated that under the Children’s Act 2022 every child has a right to survival, protection and development, the current conditions of this baby do not meet the required standards of care for children
14. It was recommended that if the mother was unable to raise bond the child DA and the sibling JMC could be committed to AIC KITUI BABY HOME for care and protection for 12 months until a long term solution is found and that the immediate parental support from the father should be provided to improve baby DA’s living conditions.
15. On the other hand, the PACs report indicated that the accused is 21 years old and the third child out of five children of the first accused and her now deceased husband. she dropped out of school in 2020 due to pregnancy she was married and separated in 2022 with two children. She got married again to the current husband.
16. Regarding sureties, the report indicates that the accused has two uncles, her sister and her husband routing for her and that the chief confirms that she has a good reputation in the community has never been involved in any criminal activities
17. The chief is also willing to participate in monitoring role and ensuring that the accused person attends the court and adheres to the bond terms. He confirmed that she has a fixed abode and has a 5-year-old baby staying with a great grandmother and therefore she is not a flight risk
18. The family stated they were unable to raise the bond of 100,000 shillings due to financial constraints.
19. I have carefully considered the two reports. I have interviewed the accused person with respect to where she will live if her bond is revised.
20. On security I note that the family has a 5-acre piece of land but it does not have a title deed.
21. The child DA has the right to be a baby despite the mother’s circumstances. The court has to determine between the CCI children’s home and the mother’s care what would be in the child’s best interests? Definitely the care of the mother especially at this very tender age.
22. The purpose of bond is to ensure that an accused person attends court during the trial as and when required. It is not supposed to be punitive to curtail the accused person’s liberty When she is still enjoying the presumption of innocence.
23. It is important to be clear that the mere fact of having a baby in prison is not per se a ticket to liberty should the accused person’s detention be necessary pending the hearing and determination of the case. Every case must be considered on its own merits.
24. In this matter the accused person hails from a family that became dysfunctional upon the death of her father in 2010. She ticks some of the other boxes she has a clean record in the community, she’s not a flight risk she has a community and family around her she is the mother of another young child. The local administration is clear she is not a flight risk. She confirms she will live with her grandmother pending the hearing and determination of the case.
25. In the circumstances she’s admitted to personal bond of Ksh150000, which she will sign, to be guaranteed by the uncle, the sister and the husband who will each deposit in court a letter from the chief where they live, copy of their National Identity Card and full photograph. In addition, the accused person’s husband will provide a letter from his employer.
26. The accused person will also deposit a copy of her ID and a photo of herself upon release.
27. The accused is not to leave the Jurisdiction of this court without informing the chief, and the permission of the court.
28. The order be served upon the area chief for compliance.
Orders accordingly
Dated, signed and delivered this 25th April 2025
Mumbua T Matheka
Judge
CA Chrispol
Accused present