a) Spent.
b) this Honourable Court be pleased to grant leave to the Applicant to file a substantive application to be released on bond.
c) Upon the grant of prayer (b) above, the Honourable Court be pleased to release the Applicant herein, FRED NDIGWA NUNDA, on bond.
d) That the Honourable court be pleased to issue any further and/or better orders as may meet the ends of justice herein.
2. This application brought on the grounds that;
a) The Applicant was arrested and charged with the offence of murder in KISII HCCR NO. E030 of 2023.
b) The Honourable Court ordered that the Applicant be remanded in custody at Kisii GK Prison, awaiting trial. However, the Applicant’s mother, Gladys Moraa Ndigwa, died on 30th June 2025, and her body is currently lying at Hema Hospital Mortuary.
c) Since the Court has already rendered its decision regarding the Applicant’s release from remand on bond terms, it cannot therefore deal with the same matter.
d) It is therefore critical for the Applicant to file this instant application, seeking leave from the Honourable Court to file a substantive application to be released on bond to enable him to attend and make arrangements for his late mother’s burial, being the firstborn son and the family’s primary breadwinner.
e) It is in the interest of justice that the application herein be granted.
f) The Respondent will not be prejudiced if the orders sought herein are granted.
g) Unless the Applicant’s orders sought in this instant application are granted, prejudice will be occasioned upon him.
h) It is fair and just that this application be allowed.
3. This application is supported by an affidavit of Fred Nunda , in his affidavit he contends that the court had previously denied him bond and soh e has filed this application in order to allow him to make burial arrangements as the firstborn son and primary breadwinner after his father died ,He culturally became responsible for the burial under Gusii customary laws . He further argues that the prolonged detention without bond delays burial and causes financial and emotional hardship , and that the application is in the interest of justice and the prosecution will not be prejudiced if the orders sought are granted.
4. The prayer for leave was not opposed by prosecution and counsel for the victim .
5. I have considered the application herein together with the supporting affidavit . the respondent did not oppose the application .
ISSUES FOR DETERMINATION.
Whether the applicant has met the threshold for granting leave to file an application for bond and bail.
ANALYSIS AND DETERMINATION
5.On whether the applicant has met the threshold for grant of leave to re-apply bond , the condition for leave is put in order to curb applications which are frivolous , vexatious and an abuse of court process .In Mombasa HCMCA No. 384 of 1996: Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others it was held that:
The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.
6.In my ruling dated 18.06.2025 , I declined the application to grant leave to file substantive application for bail and bond with my reasons thereon, this court is functus officio in so far as the issues raised in the then application brought before me .i therefore find that this application for leave for substantive application is devoid of merit .
7.In Republic v Diana Suleiman Said & another [2014]eKLR where it was stated;
“With respect, I do not agree that the review of bail on the ground of changed circumstances, or changes in the circumstances of the case, including circumstances of the accused, witnesses, victims or the society affected by alleged crime is a strange phenomenon. I would say our courts do it every day when we sit to consider renewed applications for bail such as when volatility on the ground is established to have ceased or for the cancellation of bail on account of accused’s refusal to attend court while on bail, when sureties withdraw or for other reasons. The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances change in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.”
8. The application herein based on the ground that the mother to the applicant is deceased and he annexed her death certificate as change of circumstances . In the judiciary bail and bond policy guidelines , changed circumstances is an additional principle the court requires in deciding whether to grant an accused bond who had been denied bond before.
9. As held in my previous rulings delivered on 27.2.2024 and 16.6.25 the applicant has the duty to convince the court that there are change of circumstances from the time when he was denied bail and bond to warrant grant of leave to file subsequent application .
.11. The applicant has brought this application on grounds that his mother is deceased that she is yet to be buried and that according to Gusii customary laws , he is supposed to be in-charge of his mother’s burial preparations . I sympathize with the accused for loss of his mother however this is a court of record and justice . The facts and history of the issue of bond herein are on record . It matters not that the community his vouching for his release It has not been shown how accused is going to remove the tag of ‘’flight risk ‘’ as found by this court in it’s ruling herein dated 17.10.23 .
12. In the upshot of the above is that the applicant has not met the threshold for grant of leave to file another substantive application for bond , There is thus is no need to proceed to determine the other prayers . The application therefore is devoid of merit and is hereby dismissed..
13. I note that the applicant has previously filed numerous applications on the same issue . I proceed grant him a right to move the Court of appeal to put this of bond to an end .
14.It is so ordered.
15. .Further Hearing 8.10.25.
T.A ODERA
JUDGE
22.7.25 .
Delivered virtually Via Teams platform in the presence of accused, Mr Ochoki advocate for 1st accused , 2nd accused , Mr Koima for Prosecution . Mr Morara watching brief for the victims and Court Assistant – Kipchirchir.
b) this Honourable Court be pleased to grant leave to the Applicant to file a substantive application to be released on bond.
c) Upon the grant of prayer (b) above, the Honourable Court be pleased to release the Applicant herein, FRED NDIGWA NUNDA, on bond.
d) That the Honourable court be pleased to issue any further and/or better orders as may meet the ends of justice herein.
2. This application brought on the grounds that;
a) The Applicant was arrested and charged with the offence of murder in KISII HCCR NO. E030 of 2023.
b) The Honourable Court ordered that the Applicant be remanded in custody at Kisii GK Prison, awaiting trial. However, the Applicant’s mother, Gladys Moraa Ndigwa, died on 30th June 2025, and her body is currently lying at Hema Hospital Mortuary.
c) Since the Court has already rendered its decision regarding the Applicant’s release from remand on bond terms, it cannot therefore deal with the same matter.
d) It is therefore critical for the Applicant to file this instant application, seeking leave from the Honourable Court to file a substantive application to be released on bond to enable him to attend and make arrangements for his late mother’s burial, being the firstborn son and the family’s primary breadwinner.
e) It is in the interest of justice that the application herein be granted.
f) The Respondent will not be prejudiced if the orders sought herein are granted.
g) Unless the Applicant’s orders sought in this instant application are granted, prejudice will be occasioned upon him.
h) It is fair and just that this application be allowed.
3. This application is supported by an affidavit of Fred Nunda , in his affidavit he contends that the court had previously denied him bond and soh e has filed this application in order to allow him to make burial arrangements as the firstborn son and primary breadwinner after his father died ,He culturally became responsible for the burial under Gusii customary laws . He further argues that the prolonged detention without bond delays burial and causes financial and emotional hardship , and that the application is in the interest of justice and the prosecution will not be prejudiced if the orders sought are granted.
4. The prayer for leave was not opposed by prosecution and counsel for the victim .
5. I have considered the application herein together with the supporting affidavit . the respondent did not oppose the application .
ISSUES FOR DETERMINATION.
Whether the applicant has met the threshold for granting leave to file an application for bond and bail.
ANALYSIS AND DETERMINATION
5.On whether the applicant has met the threshold for grant of leave to re-apply bond , the condition for leave is put in order to curb applications which are frivolous , vexatious and an abuse of court process .In Mombasa HCMCA No. 384 of 1996: Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others it was held that:
The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.
6.In my ruling dated 18.06.2025 , I declined the application to grant leave to file substantive application for bail and bond with my reasons thereon, this court is functus officio in so far as the issues raised in the then application brought before me .i therefore find that this application for leave for substantive application is devoid of merit .
7.In Republic v Diana Suleiman Said & another [2014]eKLR where it was stated;
“With respect, I do not agree that the review of bail on the ground of changed circumstances, or changes in the circumstances of the case, including circumstances of the accused, witnesses, victims or the society affected by alleged crime is a strange phenomenon. I would say our courts do it every day when we sit to consider renewed applications for bail such as when volatility on the ground is established to have ceased or for the cancellation of bail on account of accused’s refusal to attend court while on bail, when sureties withdraw or for other reasons. The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances change in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.”
8. The application herein based on the ground that the mother to the applicant is deceased and he annexed her death certificate as change of circumstances . In the judiciary bail and bond policy guidelines , changed circumstances is an additional principle the court requires in deciding whether to grant an accused bond who had been denied bond before.
9. As held in my previous rulings delivered on 27.2.2024 and 16.6.25 the applicant has the duty to convince the court that there are change of circumstances from the time when he was denied bail and bond to warrant grant of leave to file subsequent application .
.11. The applicant has brought this application on grounds that his mother is deceased that she is yet to be buried and that according to Gusii customary laws , he is supposed to be in-charge of his mother’s burial preparations . I sympathize with the accused for loss of his mother however this is a court of record and justice . The facts and history of the issue of bond herein are on record . It matters not that the community his vouching for his release It has not been shown how accused is going to remove the tag of ‘’flight risk ‘’ as found by this court in it’s ruling herein dated 17.10.23 .
12. In the upshot of the above is that the applicant has not met the threshold for grant of leave to file another substantive application for bond , There is thus is no need to proceed to determine the other prayers . The application therefore is devoid of merit and is hereby dismissed..
13. I note that the applicant has previously filed numerous applications on the same issue . I proceed grant him a right to move the Court of appeal to put this of bond to an end .
14.It is so ordered.
15. .Further Hearing 8.10.25.
T.A ODERA
JUDGE
22.7.25 .
Delivered virtually Via Teams platform in the presence of accused, Mr Ochoki advocate for 1st accused , 2nd accused , Mr Koima for Prosecution . Mr Morara watching brief for the victims and Court Assistant – Kipchirchir.