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JudgmentThe Republic VS MATHEW MUTUKU MWOLOLO3 min read

The Republic VS MATHEW MUTUKU MWOLOLO

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


  1. Mathew Mutuku Mwololo is charged with two counts of murder contrary to section 203 as read with 204 of the Penal Code: Count I: Particulars being that on the 25th day of December 2023 at Miangeni Village, Kisingo Sub-location, Makindu Location within Makindu Sub-County of Makueni County murdered Daniel Muteti Mwikya: Count II: On the 25th day of December, 2023 at Miangeni Village, Kisingo Sub-location, Makindu Location within Makindu Sub-County of Makueni County murdered Muthiani Kiendi.
  2. Plea was taken on 5/3/2024 and he pleaded not guilty to both charges.
  3. The prosecution had no objection to bond.
  4. I sought a pre-bail report from PACs.
  5. I have considered the report.
  6. The report raises the concerns of the local administration that accused is a flight risk due to the hostility in the community. The family of the victim habours fears of the “re-victimisation” by the accused person. I have seen that term used severally by PACs but it has not been unpacked – I gather from the report that the fear is that the accused could also harm them. It is natural to habour fear of the person accused of causing harm to your close family member, but unless that fear is determined to amount to a compelling reason – the accused’s right to bond must be premised on the presumption of innocence. The investigative agencies and the ODPP have the duty and responsibility to bring this to the attention of the court in the appropriate manner.
  7. The family of the accused are willing to stand surety for him and to ensure he attends court. There is no fear of flight there – the

accused has fixed abode, has a family and has been a responsible member of the community until he was charged with this offence.

  1. The accused’s family is in-law to the family of the deceased in the second count – and the report indicates that there have been efforts to heal that relation.
  2. Be that as it may, the accused person has a right to be released on bond pending trial unless there are compelling reasons not to release him as per Article 49(1) (h) of the Constitution.
  3. As provided for in the Bail and Bond Policy Guidelines It is the dusty of the prosecution to satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. They are required to state the reasons that should persuade the court to deny the accused person bail, including the following:

a. That the accused person is likely to fail to attend court proceedings; or

b. That the accused person is likely to commit, or abet the commission of, a serious offence; or

c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or d. That the accused person is likely to endanger the safety of victims, individuals or the public; or

e. That the accused person is likely to interfere with witnesses or evidence; or

f. That the accused person is likely to endanger national security; or

g. That it is in the public interest to detain the accused person in custody.

  1. The Policy guidelines also provide for a PACs report as complementary to the process and court has the discretion to make the request for a bail report where it considers that it does not have sufficient information to make a fair and appropriate bail decision, including the following instances:

a. Where there is doubt on the information on the accused person relating to the grant of bail; or

b. Where the prosecution objects to bail, with plausible reasons; or

c. Where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms; or

d. Where the victim of the crime contests the grant of bail or applies for review of bail conditions; or,

e. On the court’s own motion where it deems necessary

  1. Each case must be considered on its own facts and in this one I am not persuaded that there are compelling reasons not to admit the accused to bond, which is a commitment by the accused person that he will attend court until the matter is determined, and not do anything that could interfere with the just determination of the case. Bond is set at 500,000/- with surety of similar amount.
  2. Accused person shall to stay away from the family of the deceased person. He shall not to contact them in any manner, way or form in default his bond will be cancelled.
  3. Right of appeal within 14 days.

Dated signed and delivered, this 16th day of April, 2024.


    The Republic VS MATHEW MUTUKU MWOLOLO The Republic VS MATHEW MUTUKU MWOLOLO