The Republic VS ROBERT MUEMA NYAMA

1. The accused Robert Muema Nyamai is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on 25/7/2019 around 4:00 pm at Kivuu village Maiani sub-location, Kilome location Mukaa sub location, Makueni County he unlawfully murdered Stephen Nyamai Munguti.
2. He took plea on 8/12/2020 and pleaded not guilty vide a ruling dated 20/4/2021 Hon. Dulu J. declined to grant his bond bail on the following grounds: -
“In the present case, from the pre-bail report filed, it is clear that the deceased is the father of the accused. The accused has lived with the mother who was separated from the father years ago. I note that all family members and the local administration are not comfortable with the accused being released on bail due to his demonstrated previous show of threats to violence and on allegations that he consumes bhang and local brew and becomes violent when drunk. Only the mother of the accused who is a poor peasant and not capable of controlling the activities and the life of the accused as he has adopted bad habits from peers, supports his release on bail.
- In my view, the state has demonstrated sufficient reasons for denial of bond or bail for the accused herein in order to protect him and to protect the community he also appears to be a person of no known fixed abode as he is not married and the mother, though genuinely concerned about him has lost control for him due to peer pressure.”
3. Since then, the accused has been in custody. He has now requested for review of the bond.
4. A PACS bail review report was filed on 28/5/2024.
5. Looking at the report – it emerges that the accused is charged with killing his own father.
6. The initial PACS report was filed on 17/2/2021. In that report the probation officer told the court:
The accused and his siblings faced an early turbulent life after the separation of his parents and he grew up at his maternal home side. The mother struggled to alone to up bring her children through hard work. Inappropriate parental control saw the accused develop deviancy in behavior due to bad company hence dropping out of school. Even though the accused has no history of having suffered any mental condition during his early growth however home reports indicated that he showed psychological disturbances which they attributed to one excessive drugs abuse and secondly having stolen property from a certain family who casted evil spirits to him. His mother on the other hand attributed his problems to evil spirits kept by his late father in his house at the fire place. The mother added that the accused became poor in managing his anger and would frequently pick physical fight and talking incomprehensible and weird things like being thirsty to drink human blood.
7. The report painted a picture of a family that had undergone psychological stress and an accused person who together with his siblings has suffered some trauma as a result of parent separation.
8. The current report however states:
During the interview it was established that the accused grew up with no known physical or mental health conditions.
9. The report also shows that the accused had issues with his father – the report says that “the deceased was biological father to the accused person. It was reported that the two never lived in peace. They were living in constant conflict due to family property”.
10. The report picks the victim’s family concern thus: -
The victim’s family felt that they have not been able to heal out from the incident and considering that they do not know what the intention of the accused was to the family. Being in their sight, it is likely to trigger retaliation or thoughts of revenge and they are still living in fear not knowing what the accused will do when he comes back home. Uncle Paul, aunt Eunice and aunt Jane observed that what has been traumatizing the family most was the memory of seeing the nature of the injuries of the deceased’s body. The family further noted that they are still living in fear and seeing him around would provoke better memories which would sadly torment them. In upshot the victim’s family objects the release of the accused on bails on grounds that they were still mourning and that it may endanger the accused’s life in revenge from the family.
11. It is noteworthy that these were the exact words in the report made in 2021.  I wondered why there was no further analysis  three years  down the line.
12. It is also the same words used earlier report to the possibility of the accused person interfering with witness – that villagers are “very hostile and agitated by the incident”.
13. Despite the foregoing, the conclusion is however expressed thus:-
In conclusion therefore, the social inquiry has not established anything substantial against the accused person to form basis of advising the court to deny him bail/bond review, unless based on other grounds hence, the accused is found favorable and may be considered for bail review terms which the court would deem fit and with a caution not to engage in any way the prosecution witnesses and the victim’s family whatsoever. This is however subject to the courts final verdict.
14. From the forgoing it is appears to me, and this is lend credence by the reproduced  words in the report, that there was no analysis of the current situation in the home of the accused to bring a fresh new view of the current position of the family.
15. What stands out for me is that the issue that led to the death was not a family dispute issue – it was an issue between the accused person and his father and it was about property – there is no indication that that issue had been raised with any other person in the family. I would have expected the PACS officer, having noted that to be the issue – to have followed up with the family – on this review issue to see what the current felling was about this issue – and whatever the issue was live in the family and not to regurgitate the previous report.
16.  In addition I must continue to express my failure to understand the PACS habit of describing and classifying people as poor, very poor simply because they are not in a employment and that they live in their ancestral land.
17. Poverty: It is unfair and improper in dignifying to do that. If the land is still in the name of the grandfather and they have not gone through a succession process – does not make them poor. Why would the PACS officer not look into any other capital, including social capital the family may have that would enable the family to stand surety for their kin? Any person who chooses to stand surety for him will be committing to ensuring that he attends court
18. From the reports, the accused has a fixed abode in his mother’s home . Nothing has been placed before me to demonstrate  any demonstrable threat to witnesses or interreference with witnesses.
19. The violence attributed to him requires treatment not just incarceration. His Constitutional right to be presumed innocent until proven guilty in accordance with the law cannot be disregarded anyhowly. His psychological challenges will not be resolved by incarceration, and it is evident that the whole family needs help.
20. That said there appears to be no bar in terms of compelling reasons against the accused being released on bond. 
21. For these reasons above the accused person is admitted to bail/bond. – he may be released on bond of Ksh. 200,000/= with one surety of similar amount or two of Ksh 50,000 each.
22. In the meantime, and in addition he is referred to psychological counseling  and treatment

On Counselling:– Ms. Nelima the court assistant to work together with the Prison authorities, the Makueni Referral hospital and the mediation/counseling volunteers to assist in this:

On treatment- an order does issue that he be escorted to the psychiatrist for diagnosis and treatment within 14 days hereof with a mention thereafter for progress report
23. Should the accused person be released and pending the trial, the accused will be under the supervisor of PACS to ensure he continues with any counselling/treatment  support.
24. Orders accordingly, to be served upon the PACS and Prison Authorities for compliance.

Dated, signed and delivered virtually on 12th July 2024

Mumbua T Matheka

Judge