REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL CASE NO. E009 OF 2025
(Coram: Andayi W. F., J.)
MOHAMMED ABDALLAH MWABOHOYA…1ST ACCUSED
JUMA ATHUMAN MWAKUNA……………2ND ACCUSED
RIZIKI CHENGO KAINGU……………………3RD ACCUSED
ABDALLAH ALI MWABOMEZA……………4TH ACCUSED
MATANO ABDALLAH MWABOHOYA…..5TH ACCUSED
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
R U L I N G
1. The accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code that on 26/2/2025 at Umoja village, Diani location within Kwale County they killed Mohamed Ali Kiphuza alias Rasta.
2. When the matter came up on 5/5/2025 for the court to consider the bail reports which had been filed and make a ruling on release of the accused person’s on bond, learned counsel for the victims informed the court that the victims were opposed to the accused person’s being released on bond and required more time to file an affidavit in opposition. Learned counsel for the accused persons vehemently opposed any further delay on the determination of bond noting that the victims had been given sufficient time to file their affidavits. The learned prosecution counsel submitted that they will wholly rely on the bail reports. The court granted the victim’s request through their advocate to file their affidavits.
3. I have seen two affidavits filed, one sworn by by Badi Suleiman Mwajirani and the other by Saum Abdallah Nimatiko both sworn on 8/5/2025.
4. When the matter came up today 19/5/2025 learned counsel for the accused persons submitted that she had received and considered the affidavits and the accused person did not wish to respond to the same. That they entirely rely on the bail reports filed earlier which were indicative in all cases that the accused persons had strong community ties and so could be released on bond.
5. I have considered the affidavits filed by the victims of the offence. The main issue raised in the affidavits is that some of the representations made in the bail reports by the probation officer are not correct. The most highly contested issue is that the family of the deceased were interviewed and gave their views. They agree that Badi Suleiman Mwajirani, one of the deponents of the affidavits was interviewed by the probation officer but deny that what he gave were views of the family. They deny the representation that Badi is an uncle of the deceased and insist that he is a son-in-law. They also deny that he is the one paying for the legal costs of the counsel for the victims as represented in the bail reports but that counsel is appearing for the victims on pro bono terms. They both insist that his views were those of an eye witness to the alleged commission of the offence.
6. Although the deponents indicate that they would wish the author of the report and the said Badi Suleiman Mwajirani to be made available for cross-examination, I do not find any propriety in that request. It will unnecessarily prolong the process of bond/bail determination and may even spill into a hearing of the case, seeing that Badi is indicated to be a witness to the alleged offence.
7. Article 50(9) of the Constitution provides that Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences. This provision has been given effect by the Victims Protection Act (Cap. 79A) Laws of Kenya.
8. Section 4(2) provides that every victim shall be given an opportunity to be heard and respond before any decision affecting him or her is taken.
9. The rights of the victim are explained in Section 9:-
9(2) Where the personal interest of a victim have been affected, the court shall;
(a) permit the victims views and concerns be presented and considered at stages of the proceedings determined to be appropriate by the court; and
(b) ensure that the victims views and concerns are presented in a manner which is not –
(i) prejudicial too the rights of the accused; or
(ii) inconsistent with a fair and impartial hearing
10. The victim’s herein feel that their views have not been represented to the court before a decision on the release of the accused persons on bond is made. It is only fair that the same be taken.
11. Consequently, it is ordered that an additional bail report by the Probation department, Kwale be provided to this court and in particular to take into account the views of the victims of the offence who among others have identified themselves through the affidavits filed herein.
12. The report to be filed in court within the next 14 days.
13. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 19th day of May 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
All accused persons present from Shimo la Tewa prison on the virtual platform.
Barayan (Ms) for the Accused persons.
Ngonze for the Victims.
M/s Vallerie for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL CASE NO. E009 OF 2025
(Coram: Andayi W. F., J.)
MOHAMMED ABDALLAH MWABOHOYA…1ST ACCUSED
JUMA ATHUMAN MWAKUNA……………2ND ACCUSED
RIZIKI CHENGO KAINGU……………………3RD ACCUSED
ABDALLAH ALI MWABOMEZA……………4TH ACCUSED
MATANO ABDALLAH MWABOHOYA…..5TH ACCUSED
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
R U L I N G
1. The accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code that on 26/2/2025 at Umoja village, Diani location within Kwale County they killed Mohamed Ali Kiphuza alias Rasta.
2. When the matter came up on 5/5/2025 for the court to consider the bail reports which had been filed and make a ruling on release of the accused person’s on bond, learned counsel for the victims informed the court that the victims were opposed to the accused person’s being released on bond and required more time to file an affidavit in opposition. Learned counsel for the accused persons vehemently opposed any further delay on the determination of bond noting that the victims had been given sufficient time to file their affidavits. The learned prosecution counsel submitted that they will wholly rely on the bail reports. The court granted the victim’s request through their advocate to file their affidavits.
3. I have seen two affidavits filed, one sworn by by Badi Suleiman Mwajirani and the other by Saum Abdallah Nimatiko both sworn on 8/5/2025.
4. When the matter came up today 19/5/2025 learned counsel for the accused persons submitted that she had received and considered the affidavits and the accused person did not wish to respond to the same. That they entirely rely on the bail reports filed earlier which were indicative in all cases that the accused persons had strong community ties and so could be released on bond.
5. I have considered the affidavits filed by the victims of the offence. The main issue raised in the affidavits is that some of the representations made in the bail reports by the probation officer are not correct. The most highly contested issue is that the family of the deceased were interviewed and gave their views. They agree that Badi Suleiman Mwajirani, one of the deponents of the affidavits was interviewed by the probation officer but deny that what he gave were views of the family. They deny the representation that Badi is an uncle of the deceased and insist that he is a son-in-law. They also deny that he is the one paying for the legal costs of the counsel for the victims as represented in the bail reports but that counsel is appearing for the victims on pro bono terms. They both insist that his views were those of an eye witness to the alleged commission of the offence.
6. Although the deponents indicate that they would wish the author of the report and the said Badi Suleiman Mwajirani to be made available for cross-examination, I do not find any propriety in that request. It will unnecessarily prolong the process of bond/bail determination and may even spill into a hearing of the case, seeing that Badi is indicated to be a witness to the alleged offence.
7. Article 50(9) of the Constitution provides that Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences. This provision has been given effect by the Victims Protection Act (Cap. 79A) Laws of Kenya.
8. Section 4(2) provides that every victim shall be given an opportunity to be heard and respond before any decision affecting him or her is taken.
9. The rights of the victim are explained in Section 9:-
9(2) Where the personal interest of a victim have been affected, the court shall;
(a) permit the victims views and concerns be presented and considered at stages of the proceedings determined to be appropriate by the court; and
(b) ensure that the victims views and concerns are presented in a manner which is not –
(i) prejudicial too the rights of the accused; or
(ii) inconsistent with a fair and impartial hearing
10. The victim’s herein feel that their views have not been represented to the court before a decision on the release of the accused persons on bond is made. It is only fair that the same be taken.
11. Consequently, it is ordered that an additional bail report by the Probation department, Kwale be provided to this court and in particular to take into account the views of the victims of the offence who among others have identified themselves through the affidavits filed herein.
12. The report to be filed in court within the next 14 days.
13. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 19th day of May 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
All accused persons present from Shimo la Tewa prison on the virtual platform.
Barayan (Ms) for the Accused persons.
Ngonze for the Victims.
M/s Vallerie for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE