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JudgmentRepublic VS JULIUS MUNYWOKI MASILA4 min read

Republic VS JULIUS MUNYWOKI MASILA

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

  1. The accused was charged with murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya.
  2. He pleaded not guilty on 7/5/2024.
  3. The prosecutor has no objection to bond.
  4. I sought pre-bail report – it was filed on 21/05/2024 in which the PACs officer stated that the report was to assess the suitability for a bond/bail terms information for the accused person. The report will cover the family background, the accused person’s history, the victim’s concern, bond/bail sureties’ assessment and the community attitude towards the offence.
  5. The report was compiled after obtaining information from various sources including:

The court file HCCR No. E009/2024 for the accused; Interviews with the accused person at Makueni Remand Prison (main), his mother, the victim’s family members who included former husband, and brother-in-law to the victim, a neighbor to the accused’ family, the area chief Makindu location Francis Kimende, area assistant chief Manyata sub-location Madam Catherine and the village elder Ndatha village Madam Sarah.

  1. It was reported that the accused’s family  collaborated well and were ready and willing to offer the information required to compile this report.
  2. It was reported that the   family owned five acres of land but  the PACs report still  described them as poor people for the sole reason that they do noy have a title deed yet that is their ancestral home.
  3. The report also bore a lot of allegations which I found to be unsupported by any tangible evidence against the accused – For instance the allegations that accused had relocated to Tanzania, that accused was a habitual criminal who had threatened to kill his mother did not have any substantive collaborative evidence to support the conclusion that the accused would be unsuitable for bail.
  4. In addition, the secondary victims alleged to fear for their lives are not named in the report nor is the basis of their fear. To merely state that they fear re victimisation is not enough. What does that mean to the victim?
  5. The state did not fine reason to object to bond. The findings of the Bail Report are to assist the court on various parameters. Whether or not the accused is suitable for bail or bond is not for the PACs officer to determine. That is for the court to determine. Hence it is out of place for the PACs officer to draw that conclusion.
  6. Vagueness – cannot be the reason to deny the accused bond – there must be compelling reasons – the state has not found any.
  7. The Bail and Bond Policy Guidelines warn about the shortfalls that befall Bail reports at paragraph 4:12

Such bail information could, for example, be obtained from the Probation and Aftercare Service, which prepares bail reports at the request of the court. However, the integrity of such independent information cannot be taken for granted. In any case, the courts are not obliged to use bail reports, with the effect that while some courts use them, others do not. Nevertheless, because of severe resource and personnel constraints, it is doubtful whether the Probation and Aftercare Service would manage were the Judiciary to make bail reports mandatory in all cases. A potential drawback of the bail reports is that they may contain information that is prejudicial to the accused person (such as previous convictions), which may make it necessary for the courts to separate bail determinations from the trial. In addition, given the influential role that probation officers increasingly play in bail determinations, accused persons and their families may offer them bribes to influence their reports. Mechanisms should therefore be established to ensure the integrity of bail reports.

  1. I have put this here just to demonstrate the danger that lurks in the reports in that they may contain information that is prejudicial to an accused person and which information the accused may not be able to challenge yet it may lead to the curtailing of some of his rights.
  2. It behooves the Probation Officer to sift the facts necessary to the issue at hand from the stories that abound when a conflict arises. This is necessary so that the officer does not confuse the roles of the DPACS, DPP and the Judicial officer/Judge.
  3. In the circumstances of this case I do not agree that the accused is unsuitable for bond.
  4. On the issue of assessment of sureties, the role of the PACs officer is to identify those proposed by the accused or the family and to give the court their profiles., in relation to the accused and the family of the accused.
  5. It is unfortunate that even families who live on their own ancestral land are described as poor. I would respect of a PACs officer to show to the court how that fact favours the accused with regard to family ties.
  6. All that said, the accused is admitted to Bond at 200,000/= with surety of similar amount.
  7. Orders accordingly

Dated, signed and delivered in open court on 28th May 2024

…………………………………………..

Mumbua T Matheka

Judge

    Republic VS JULIUS MUNYWOKI MASILA Republic VS JULIUS MUNYWOKI MASILA