BAIL REVIEW RULING
1) The two accused persons are son and father, and face murder charge contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 15/9/2024 at Kilia Village, Kyamole Sublocation Kee Location, Kilungu Subcounty they murdered Thomas Kimotho Musya alias Mukui.
2) They pleaded not guilty and Bond was set at Kshs. 200,000 with surety of similar amount each.
3) The matter has proceeded for hearing and 2 witnesses have testified so far. Counsel for the accused persons sought review of bond terms on the ground that the accused person would not be able to the bonds.
4) Bond pending trial is a constitutional right which is tied to the presumption of innocence that one is presumed innocent until proven guilty. Article 49(1) (h) of the Constitution is clear that one ought to be released on bond unless compelling reasons are provided.
5) Section 123A. of the Criminal Procedure Code provides as follows
Exception to right to bail
(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
(a) the nature or seriousness of the offence;
(b) the character, antecedents, associations and community ties of the accused person;
(c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
(d) the strength of the evidence of his having committed the offence;
(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b) should be kept in custody for his own protection.
6) In this case I sought the report of the probation after care service officer.
7) S. 123 (2) provides
The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
8) The PACs report indicates that the accused persons are not a flight risk. They have a fixed abode and family are willing to stand surety for them.
9) The family of the deceased who are also related to the accused persons are objected to the release of the accused persons because they are still mourning . The court is required by law to take into account the views of the victims and in this case - those of the family members of the victim.
10) The loss of a family member through such death is traumatizing , no one can explain the pain the family feels, except for those family members - but until the accused person is found guilty and convicted of the offence charged - he is to be presumed innocent - and that comes with release on bond pending trial.
11) Secondly it has not been demonstrated that the accused persons pose any danger to the family of the victims to warrant denial of the application for review of bond.
12) There was no objection to the release of the accused on bond in the fist place.
13) The requirement for bond is to secure the appearance of the accused person in court throughout trial.
14) In this case the security of a piece of land/or moveable property is not available as the accused, father and son do not have access to that.
15) However from the report, the father Samuel Wambua Mutie has sufficient social capital to the extent that both the village elder and the assistant chief are ready, willing to guarantee that he is not a flight risk, and will attend court if granted bond. The report speaks to that, and when the village elder testified in court he spoke to that as well.
16) With regard to Antony Mutie Wambua it is stated that he is not a flight risk and that a surety will be availed.
17) From the foregoing the application for review of the bond terms is allowed in the following terms:
1. Bond is reviewed to Kshs. 100,000 with one surety of similar amount.
2. The father will sign personal bond of Kshs. 50,000. Kyalo Ndungwa and George Kiamba who have expressed willingness to stand surety for his will sign a joint bond of both Kshs. 50,000. Each will avail recommendation letter from the area assistant chief, and provide copies of their ID Cards and a full photograph of each. Accused will also deposit copy of ID and his photo.
3. For the 1st accused any security including the log book of a motor cycle, together with a letter from the area assistant chief for the depositor, copy of ID and photo of the surety , accused’s copy of ID and photo.
18) Orders accordingly
Dated signed and delivered virtually this 9th April 2025
Mumbua T Matheka
Judge
Chrispol Court Assistant
1st Accused : present
2nd Accused: present
Kazungu for State
Hassan for 1st accused
Wasolo for 2nd Accused: