Republic v Dennis Opete Omunyala & 6 others [2022] KEHC 15168 (KLR)

Republic v Dennis Opete Omunyala & 6 others (Criminal Case E036 of 2020) [2022] KEHC 15168 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15168 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E036 of 2020

TM Matheka, J

November 2, 2022

Between

Republic

Prosecution

and

Dennis Opete Omunyala alias Daddy/Opete

1st Accused

Evans Omondi Oduor alias Babz

2nd Accused

Victor Ochieng Okode alias Sambaa

3rd Accused

Joseph Njogu alias Jose

4th Accused

Lucky Luvale Opete

5th Accused

Victor Alietsi alias Rasta/Vickey

6th Accused

Zacharia Njiru Mwangi alias Zack

7th Accused

Ruling

Ruling On Bail Review 1. Seven (7) young men namely;1. Dennis Opete Omunyala alias Daddy Opete2. Evans Omondi Oduor alias Babz3. Victor Ochieng Okode alias Sambaa4. Joseph Njogu alias Jose5. Lucky Luvale Opete6. Victor Alietsi alias Rasta/Vickey7. Zacharia Njiru Mwangi alias ZackWere charged with Murder Contrary to Section 203 as read with 204 of the Penal Code. It is alleged that they jointly with others not before court murdered two (2) persons;1. Simon Kamau Mugo alias Funye2. Antony Odeya MahongaOn 3rd September 2020 at Hilton area, London Sub Location, Nakuru West Sub County, Nakuru County.

2. Each pleaded not guilty.

3. Bond was objected to by the prosecution on allegations that they were members of the dreaded Eastlando and Confirm Groups, that each was a flight risk, each had no fixed abode and each would interfere with witnesses.

4. Having heard the arguments on both sides, and considering the Pre-Bail Reports filed by Probation and After Care Services Nakuru I found for the accused persons, allowed the prayer for bond and admitted each to conditional bond of Kshs. 300,000/= with surety of similar amount on 12th April 2021.

5. The 4th, 6th and 7th accused persons got sureties who stood surety for each of them and are currently out on bond.

6. Those on bond;Joseph Njogu - 4th accusedVictor Alietsi - 6th accusedZacharia Njiru Mwangi - 7th accused

7. The 1st, 2nd, 3rd and 5th accused persons are still in custody, they sought bail review on the ground that they are unable to raise the Kshs. 300,000/- granted them.

8. The order for bail or bond is reviewable as it is pegged on the relevant circumstances of the accused person and shall not be excessive. Where an accused is unable to raise the bond terms granted, and it is more often than not because the terms are beyond his reach, the court is bound to review the same.

9. To assist the court to review the same, I sought bail review from Probation and After Care services.

10. The officer who made the reports, wrote a few lines in the previous bail reports to the effect that the circumstances had not changed, and therefore the accused persons were not suitable to be released on bond.

11. I have carefully considered each report.

12. The one sentence recommendation does not auger well, as these accused persons have been in custody for this offence for almost two (2) years. It is in the public domain that state agencies have moved with state force to deal with the rise of crime in Nakuru and related areas. I cannot say how that had affected the areas where the accused persons come from but I am certain they are aware of this state of affairs, and the fact that the state is vigilant.

13. The other development is that of the three (3) accused persons out on bond, so far none has absconded, none has been lynched, none has been reported for any attempt to interfere with witnesses. The Probation and After Care services reports say that the relatives of the victims live in fear and hiding, but there is nothing, not a single shred of supporting evidence to those general allegations or any evidence of any report to the police or investigating officer or court prosecutor.

14. Additionally, no specific finger is pointed at any of the accused persons of committing any of the allegations levelled at them by the Probation Officer in his report. Hence without any supporting evidence, they remain unsubstantiated allegations.

15. The allegation that the accused persons are members of gang is the main point before me but the Probation and After Care services report presents it will finality.

16. There is also the factual inaccuracy of the reports, for instance the 1st and 5th accused persons are said to be brothers of the same mother and the same father, the parents are said to be from Butere, however while the particulars of the 5th accused are from Butere those of the 1st accused are from Bungoma. This is without any explanation. However, the danger is that failure to examine each case as is required can lead to miscarriage of justice.

17. The reports have not been of assistance taking into consideration the changed circumstances. That besides, the accused persons had already been granted bond. The terms remain reasonable at Kshs.300,000/=with one surety of the same amount or two sureties each of Kshs. 150,000/=.

18. Orders Accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF NOVEMBER, 2022. MUMBUA T MATHEKAJUDGEMs. Murunga for stateMs. Moenga for 3 accused personsMs. Nyongesa for 6th accusedC/A JenifferAccused persons present