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JudgmentThe Republic VS ALPHONCE NYAMAI KISAVI3 min read

The Republic VS ALPHONCE NYAMAI KISAVI

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

</><><>></><><>></><><>></><><>></><><><>></></><><>></><><>></><><>< style="font-size: 18px;">The   accused    person  is  charged with  murder  contrary to  section  203  as read  with Section  204  of  the Penal  Code.   It  is   alleged   that  on the night  of  4/9/2023  at  2000hrs   at  Kaiani  Village,  Kilimani  the  Mbooni  East  Subcounty  within  Makueni county   he  murdered  Dorcus   Wavinya  David.

  • He took plea on 14/11/2023   and pleaded   not guilty.
  • Pending   the Bail Report    the court granted him bond of Kshs.  300,000   with   a surety of similar amount.
  • The report   was filed on 19/12/2023 -  and by then the accused had not been released on the bond terms for lack of a surety.
  • I   have   perused   the Bail   Report. It raised   2 issues against the accused person’s bond.
  • The fear of re victimization by the family of the deceased who was wife of the accused. 
  • The fear that the accused is a   flight risk if released because the community is hostile to him
  • The fear that the accused will interfere with his children who were the witnesses of the crime herein.
  • On the    other hand   his family is ready to stand surety for him as they are certain he will attend court. 
  • The report also states that the accused’s minor     children “are living in trauma   and fear since they witnessed their father killing their   mother.” The report    indicates   that the children are aged 5, and 3 (twins)
  • The Probation After Care Service Officer concludes that the accused is unsuitable for bond. 
  •   My 1st    concern is that there is no indication in the report, that anything has been done to safeguard the welfare of the three children – whether   the Directorate of Children Services has been involved to secure them the psychosocial    support   that they need. 
  • These are children in need of care and protection. The Police officer who investigated    case, and the ODPP -  ought   to    have picked up the issue of the children and placed it with DCS so that a Protection and Care file would be opened for the children as is required by Section 144 of the Children   Act. 
  • With respect     to the accused’s bond -    he has a   right to the bond -unless compelling grounds are laid before the court to warrant denial.
  • While the issue raised by the PACs officer are of concern, the prosecution and the police   did find them serious enough to warrant objection to bond or    an   application to oppose bail. The issue of denial of bond is a serious issue requiring that evidence be availed and the accused be given the opportunity to challenge it. The PACS report by itself would not be sufficient to warrant the denial of bond but provides the court with a view of the accused in the community.
  • The court   has the power to   give conditional bail to secure the liberty of the accused -  and   to secure the safety of the people   at home. The state has the obligation to ensure the safety of the people involved.
  • In the end I find that there are no compelling reasons to deny bond. But there are reasons to support conditional bail terms.
  • The   accused person may be release on bond of Ksh.  200,000 with a surety of similar   amount.
  • It is on condition that the accused shall not go to the home of his deceased wife or have any contact with his children without the supervision of a children officer
  •   The Probation and After Care Service and DCS to pursue the safeguarding of the welfare of the children through the opening of a P&C file before the Deputy Registrar
  • The PACs officer to share all the relevant information on the family and the children with the DCS officer for this purpose.
  • The DCS to avail a Children Officer’s Report within 14 days hereof in the P&C file
  • The P&C file be mentioned before the Deputy Registrar for directions on the 25th April 2024
  • These orders be served through the Registry upon the PACs and DCS officers for compliance.
  • Orders accordingly.
  • Dated signed and delivered, this 12th day of April, 2024.


      The Republic VS ALPHONCE NYAMAI KISAVI The Republic VS ALPHONCE NYAMAI KISAVI