Republic v Mbaluto [2022] KEHC 10885 (KLR)

Republic v Mbaluto (Criminal Appeal E013 of 2020) [2022] KEHC 10885 (KLR) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10885 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E013 of 2020

MW Muigai, J

June 6, 2022

Between

Republic

Appellant

and

Pius Kasyoki Mbaluto

Respondent

((Being an Appeal from the Ruling of Hon. Jerop Brenda Bartoo (SRM) in Chief Magistrate’s Court at Machakos in Criminal Case No. 257 of 2018 delivered on 9th November, 2020))

Judgment

Background 1. The Respondent herein was charged with five Counts namely:Count 1: Forgery contrary to Section 350 of thePenal Code the particulars being that on the 25th day of March, 2005 at unknown place within Machakos County with intent to defraud forged a Land Sale Agreement to sell Plots at Donyo Sabuk Kiboko/Block 1/710 and Ndonyo Sabuk Kiboko Block 1/705 purporting to be signed by the late Esther Syekonyo.Count II: Forgery contrary to Section 350 of the Penal Code the particulars being that on the 25th day of March, 2005 at unknown place within Machakos County with intent to deceive forged signature of Nduva Kitonga Advocate for sale for parcel Donyo Sabuk Kiboko/Block 1/710 and Ndonyo Sabuk Kiboko Block 1/705 purporting to be genuine signature of the said Nduva Kitonga.Count III: Forgery contrary to Section 350 of the Penal Code the particulars being that on the 25th day of March, 2005 at unknown place within Machakos County with intent to deceive forged rubber stamp impressions of Nduva Kitonga Advocate for land sale agreement of Donyo Sabuk Kiboko/Block 1/710 and Ndonyo Sabuk Kiboko Block 1/705 purporting to be genuine rubber stamps impressions of the said Nduva Kitonga Advocate.Count IV: Making a Document without authority contrary to section 357 (a) of the Penal Code the particulars being that on 25th day of March, 2005 at unknown place within Machakos County without lawful authority made land sale agreement of land parcels Donyo Sabuk Kiboko/Block 1/710 and Ndonyo Sabuk Kiboko Block 1/705 purporting to be genuine sale of land issued and signed by Nduva Kitonga Advocate.Count V: Forceable detainer contrary to Section 91 of the Penal Code the particulars being that at unknown date of March, 2005 at unknown place within Machakos County being in possession of Plots No. Donyo Sabuk Kiboko/Block 1/710 and Ndonyo Sabuk Kiboko Block 1/705 of the late Esther Syekonyo Mailu without colour of right held possession of the said land in a manner likely to cause a breach of peace against the family of the late Esther Syekonyo Mailu who were entitled by law to the possession of the said land.

2. The Respondent herein pleaded not guilty on all Counts. The Respondent was represented by Mr. Kasili Advocate. The trial was conducted. In the Ruling on case to answer, the learned Trial Magistrate acquitted the Respondent on all Counts under Section 210 of the Criminal Procedure Code.

Evidence 3. The Prosecution called a total of four (4) witnesses in support of its case.

4. Rosemary Mailu Kamia (PW.1) told the Court that she is a resident of Machakos. She is a farmer. Her mother was called Esther Syekonyo Mailu (now deceased) and she had two parcels of land in Oldonyo Sabuk in Matungulu i.e. Number 705 and 710. That the mother had requested one Pius Kasyoki Mbaluto to take care of the parcels as they were living in Machakos. That was in the year 2000 and the Respondent asked for the title deeds to the land to enable him to take care of the land appropriately and the mother obliged and gave the title deeds for Oldonyo Sabuk. Number 705 and 710 to Pius. The mother passed on in the year 2012.

5. In the year 2016, after the death of her mother PW.1, her sister and their husbands plus one of their aunts went to check on the titles from Pius. When they reached there they found Pius who became violent and told them that their mother sold all the two parcels and was witnessed by one Jeremiah Kamoti Mailu and the transaction done in the presence of Nduva Kitonga Advocate based in Machakos.

6. The accused told them that they had an agreement with their mother and copy of the sale agreement was in the Advocate’s office. A quarrel ensued and the village elder came and asked Pius to present the same agreement but he brought a plain paper with some writing they became suspicious as the document was signed yet their mother did not know how to write and she usually used to thumbprint. The following day they reported at the D.O’s office and were advised to go with all the supporting documents. The Respondent brought a sale agreement and copies of the title which agreement was different from what they were shown the previous day.

7. Later the Chief came and informed the PW.1 that the Respondent wanted them to drop the case and transfer the land to him and in return he would pay them Kshs.100,000/-. The Agreement produced showed that it was done by Advocate Nduva Kitonga. The D.O. indicated that he would carry out his investigations and later the D.O advised them to petition for letter of administration. Later she reported the matter to the police station.

8. In the sale agreement their mother’s ID No. was indicated as xxxx and Respondent’s ID No. was not indicated. Mbaluto is now living on the land. The Respondent filed a citation from Kangundo Law Courts. According to the charge sheet it is indicated as OB 45/19/3/2018. Pius Mbaluto was never a creditor to the estate and the grant was confirmed on 17/01/2018 and no application for revocation of grant has ever been filed. The witness told the Court that they had not enquired about the parcels of land from the accused until two years after the passing on of their mother. The Respondent refused to surrender the title deed to them. That they had not indicated to Mr. Mbaluto that they wanted to sell him any land.

9. On re-examination by the prosecutor PW.1 stated that she reported this matter to the police in 2018; that the delay was occasioned by the fact that there was a Succession Cause pending; that Pius (the Respondent) was given the titles by their mother to take care of the property and protect the same from land grabbers and that she knew the titles had been given to Pius; that in 2016 they were going to collect the title deeds from the Respondent; that it is not true that their mother had sold the land due to difficulties; that she was living with their mother and she never mentioned that she had sold out the land.

10. In cross – examination PW.1 said that she does not know what other document her mother gave to the accused.

11. PW.2 (Advocate Andrew Kitonga) stated that he is an Advocate based at Machakos. He has been operating his law firm since 1993 up to date. That on 5/01/2018 he received a letter from DCI Machakos requiring him to confirm if he had signed an Agreement of Sale dated 25/03/2005 attached thereto in respect of one Mailu (seller) and purchaser (Pius Kasyoki) in respect of 2 plots title numbers Oldonyo Sabuk. Number 705 and 710 and if the stamp used was from his office. After going through his records for the year 2005 when the alleged agreements was done he could not find the document and the signature on the document was not his. He further stated that he do not know Pius Kasyoki Mbaluto (respondent) nor Mailu (deceased) and the stamp used just resembled his office stamp and he supplied the DCI with specimens of this stamp and signature for investigations.

12. On cross – examination he stated that he had neither met the Respondent nor Syokau Mailu (deceased) he only knew one Jane Mailu the daughter to Mailu (the deceased). That he is the only one in his office who is authorised to sign and stamp documents and he does not sign documents in the absence of parties; that he had never lost his stamp and that he was not the maker of the document.

13. PW.3 No.235238 C.I. Iranda Masikho a Forensic Examiner stated that he works at DCI Headquarters. He testified on behalf of C.I. Kemunto (colleague) who was away on maternity leave. He told the Court that they received an exhibit memo on 17/03/2018 from DCIO Machakos requiring them to examine the followingi.Exhibit 16 marked ‘N’ – the questioned documentii.Exhibit 18 marked 16 ‘A’ - Rubber stamp of Nduva Adviii.Exhibit 10 marked ‘B’- specimen signature for Nduva Advocateiv.Exhibit 16 marked ‘C’ – specimen signature for Pius Kasyoki (the suspect) After the analysis it was found that Exhibit marked ‘N’ and specimen signature ‘B’ were made by different authors.

The stamp impression on ‘N’ and impression A – made by the same instrument.

The signature in document marked ‘N’ with specimen signature marked ‘C’It was opined that the signature was made by the same author.

14. On cross –examination he said that there is a possibility on one having more than one signature.

15. PW.4 Festus Sila (Police Officer) based at CID Machakos stated that he was the investigating officer. A report was made in January, 2018 by two ladies that Pius Kaloki (Respondent) herein was holding title deed of their late mothers land at Ndonyo Sabuk Block 705/710. They had an agreement marked MFI-1 which was alleged that it was made by their mother and the Respondent. He contacted the Law firm where the agreement was alleged emanated and it was confirmed that it was not from their office. The specimen signature were later sent to the Government Examiner for verification.

16. On cross -examination the witness said the advocate’s signature is not the same; that the advocate confirmed the stamp was his but did not confirm whether the stamp could have been stolen.

17. The Prosecution closed their case.

Trial Court’s ruling on case to answer: 18. In its Ruling on case to answer dated 9/11/2020 the Trial Court opined that this was a Civil Matter that ought to have been dealt best before the Civil Court and therefore acquitted the Respondent herein under Section 210 of the Criminal procedure Code.

Appeal 19. Aggrieved by the Ruling, the Appellant filed its Petition of Appeal dated 23rd November, 2022 based on the following grounds:-1. That the Learned Trial Magistrate erred in law in acquitting the Respondent under Section 210 of the Criminal Procedure Code for all the five counts of offences, forgery, Making a document and Forceable detainer. The ingredients of the offences had been standard required in law.2. That the Learned Trial Magistrate erred in finding that the Respondent had not committed the offence when there was overwhelming evidence establishing that the Respondent had committed the offences.3. That the Learned Trial Magistrate erred in law and in fact in finding that the prosecution failed to establish its case beyond reasonable doubt.4. That the Learned Trial Magistrate erred in law and in fact in making a finding that the Respondent had established doubt in the prosecution’s case when the respondent’s evidence was riddled with forged sale agreement and receipts.5. That the Learned Trial Magistrate erred in law and fact in failing to consider and/or disregarding the complainants evidence and thus arrived at a conclusion contrary to the law and weight of evidence on record.

Submissions: 20. On 16/12/2021 both parties were given 14 days each to file their written submissions and the order was complied with accordingly.

Appellant’s submissions dated 22nd February, 2022. 21. The Appellant submitted that it is the duty of the prosecution to establish a prima facie case to warranty the accused to be placed in his defence. In the case of Ramanlal Trambaklal Bhatt –vs Republic [1957] E.A 332, 334 & 335, the Court stated as follows:-“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

22. All the ingredients for the offence as outlined by Section 345 of the Penal Code which states that “Forgery is the making of a false document with intent to defraud or to deceive” were proved beyond reasonable doubt.

23. The Respondent purported to perpetuate a lie that the late Esther Syekonyo Mailu had sold to him land (Ndonyo Sabuk Kiboko/Block 1/710 & 1/705.

24. The Respondent went ahead to produce a fake agreement which was disowned by PW.2 (advocate) who stated that he has no recollection of preparing the agreement. He stated that he has never met the Respondent, and the signature and stamp appearing on the document did not emanate from his office.

25. PW.3 the Forensic Examiner asserts that the signature in the fake sale agreement and the sample signatures of the respondent, were made by one author. This means that the Respondent was the maker of the fake document which was used to hoodwink the PW.1.

26. The Trial Court negated to scrutinize the matter keenly and opted for a civil trial. The aspect of criminal culpability has been proved beyond reasonable doubt that indeed the respondent was guilty of preparing a fake sale agreement purporting it to be genuine.

27. The Appellant relied on the case of R vs Dodge & Harris [1971] 2 All ER 1523 which states;“A document is false .... if the whole or any material part thereof purports to be made by or on behalf of on account of a person who did not make it or authorize its making... or if, though made by or on behalf of or on account of the person by whom or by whose authority it purports to have been made, the time or place of making, where either is material, ... is falsely stated therein; and in particular a document is false:- (a) if any material alteration, whether y addition, insertion, obliteration, erasure, removal, or otherwise, has been made therein; (b) if the whole or some material part of it purports to be made by or on behalf of a fictitious or deceased person; (c) if, though made in the name of an existing person, it is made by him or by his authority with the intention that it should pass as having been made by some person, real or fictitious, other than the person who made or authorized it.”

28. In Caroline Wanjiku Ngugi vs Republic [2015] eKLR held that forgery constitutes;“…Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus, the elements of forgery are:-i.False making of- The person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. "Writing" includes anything handwritten, type written, computer generated, printed or engraved.ii.Material alteration- The person must have taken a genuine document and changed it in some significant way. It is intended to cover situations involving false signatures or improperly filing in blanks on a form or altering the genuine content of a document.iii.Ability to defraud- The document or writing has to look genuine enough to qualify as having ability to mislead others to think its genuine.iv.Legal efficacy- The document or writing has to have some legal significance.v.Intent to defraud- The specific state of mind for forgery does not require intent to steal, but only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery may be committed either by handwriting, through the use of type writer or a computer”

29. The Appellant finally submitted that the order for acquittal be set aside and this Court to sentence the Respondent appropriately.

Respondent’s submissions dated 24th January, 2022. 30. On the issue of whether the Appellant a prima facie case on all counts to warrant the Respondent to be placed on his defence the Respondent submitted that the Trial Court made the correct decision after analyzing the evidence adduced by the prosecution in finding that the prosecution had failed to establish a prima facie on all counts to warrant the Respondent placed on his defence and that the issues raised in this matter are of a civil nature and thus ought to be dealt best before the Civil Court as there is no evidence to warrant his liability to the charges stated as it lacked sufficient weight. Reliance was made in the case of Republic –vs- Abdi Ibrahim Owi[2013) where a prima facie case was defined as follows;“prima facie” is a latin word defined by Black’s law dictionary, 8th Edition as “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” Prima facie is described by the same dictionary as the establishment of a legally required rebuttable presumption.”

Determination 31. The issues as condensed by the Grounds/Memorandum of Appeal are that the Accused person was charged with the offences listed in the charge sheet. Oral and documentary evidence was adduced by Prosecution witnesses which seemed in the absence of the Accused Defense to strongly suggest that the Accused may have forged the Sale Agreement that purported to confirm that the Complainants late mother sold the 2 land Parcels to him.

32. The Trial Court despite the evidence on record on evaluation took the view that a prima facie case was not established and the proceedings ought to have been conducted through a civil process and not criminal proceedings.

33. The issue is whether the Trial Court reached the legal decision in acquitting the Accused person under Section 210 CPC on the basis that the Prosecution had not proved a prima facie case and if it was a civil matter or not.

Right to prosecute 34. The Constitution and the National Police Service Act give the Police the mandate to investigate offences and to prefer charges.

35. In Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another [2012] eKLR, the Court stated as follows:-“The Police have a duty to investigate once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”

36. In Douglas Maina Mwangi vs. KRA & Another, Constitutional Petition No. 528 of 2013, the court stated :-“When dealing with the decision as to whether or not to prosecute, the office of the DPP exercises independent judgement as envisaged under Article 157(1) of the Constitution and Section 5 the DPP Act 2013, and the court cannot interfere unless it is shown that the exercise is contrary to the Constitution, is in bad faith and amounts to an abuse of the process.”

37. From the above constitutional and statutory mandate the Police and/or Prosecution have the responsibility to investigate and where there is evidence of unlawful conduct or omission prefer charges and present the suspect(s) before a court of law and upon hearing the Court has the Constitutional mandate to acquit or convict based on the evidence on record.

Evaluation of evidence on record 38. In the instant case, the Appellant DPP submitted that cogent and tangible evidence was presented as outlined above to prove that the Accused person forged the Sale Agreement which was sufficient evidence to warrant the Accused person to be placed on his Defence which thereafter the Trial Court would make an informed finding based on the evaluation and analysis of the evidence on record.

39. Okeno v Republic [1972] E.A 32 stated as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs. Republic [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. ( Shantilal M. Rulwala Vs. Republic [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

40. PW1 Rosemary Mailu Kamia told the Court that her mother was called Esther Syekonyo Mailu (now deceased) and she had two parcels of land in Oldonyo Sabuk in Matungulu i.e. Number 705 and 710. That the mother had requested one Pius Kasyoki Mbaluto (the accused) to take care of the parcels as they were living in Machakos.

41. PW.2 (Advocate Andrew Kitonga) an Advocate based at Machakos and he had neither met the Respondent nor Syokau Mailu (deceased) he only knew one Jane Mailu the daughter to Mailu (the deceased). That he is the only one in his office who is authorised to sign and stamp documents and he does not sign documents in the absence of parties; that he had never lost his stamp and that he was not the maker of the document in question.

42. PW.3 No.235238 C.I. Iranda Masikho a Forensic Examiner stated that he works at DCI Headquarters The signature in document marked ‘N’ with specimen signature marked ‘C’ was opined that the signature was made by the same author.

43. PW.4 Festus Sila (Police Officer) based at CID Machakos stated that he was the investigating officer. A report was made in January, 2018 by two ladies that Pius Kaloki (Respondent) herein was holding title deed of their late mothers land at Ndonyo Sabuk Block 705/710. They had an agreement marked MFI-1 which was alleged that it was made by their mother and the Respondent. He contacted the Law firm where the agreement was alleged emanated and it was confirmed that it was not from their office.

44. This Court on evaluation on the evidence on record confirms that the Accused person was/is in possession of the suit properties held in trust for the Complainants mother. He alleged during the deceased’s lifetime he bought the suit properties from her and presented the Sale Agreement the subject of the preferred charges of forgery, making a false document and forcible entry on the disputed land. PW2 the Advocate who is alleged to have facilitated the Sale Agreement denied knowledge of the Accused, his signature and official stamp on the Agreement was not from his office/law firm.

45. S 210 CPC Acquittal of accused person when no case to answerIf at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person.

46. The Trial Court delivered Ruling on 9/11/2020 and found as follows;I have perused the State’s case and I find that the State has failed to prove the Accused committed the 3 charges preferred against him.In my view this is a civil matter that ought to be dealt with best before the Civil Court as there is no evidence that the Accused person committed the said offence.I acquit the Accused person under Section 210 CPC on all 3 Counts.”

47. I find the evidence on record plausible that the Accused may have committed the offence. The Prosecution discharged it legal duty and burden of proof under Section 107-109 Evidence Act, he who alleges must prove. Whereas the burden of proof does not shift to the Defense except in specific legislated circumstances, the Accused is legally entitled to be given an opportunity if need be and if he chooses to give his defense or remain silent as provided by Section 211 CPC.

48. The Complainants are destitute without their beneficial interest from their mother the deceased of the suit properties as the same properties do not seem to have been legally and lawfully taken over by the Accused from the evidence on record. It is also alleged that the Accused person is residing on the land which amounts to forcible detainer. In the circumstances from the inculpatory evidence on record strongly implicated the Accused person and warrants the Accused to be placed on his Defense.

49. With respect, it is perplexing that the Trial Court on the one hand found that the Accused person had not committed the offences but in the same breath found out and recommended civil proceedings. It would have been logical if the Evidence on record did not disclose the offences and the accused person was acquitted irrespective of civil proceedings or not. The Proposal of commencing civil proceedings suggests then there was misconduct by Accused which the Trial Court preferred to be a breach of legal duty in civil proceedings and not a criminal offence.

50. With the evidence outlined above there was/is tangible and cogent evidence implicating the Accused person for him to be placed on his defense.

51. The issue of concurrent civil and criminal proceedings is legally provided for Section 193 A of the Criminal Procedure Code provides as follows:-“Notwithstanding the provisions of written law, the fact that any matter in issue in any criminal proceedings is also directly in issue in any civil proceedings shall not be a ground for stay, prohibition or delay of the criminal proceedings.”

52. In Kuria & 3 Others vs. AG (2002) 2 KLR 69 the Court emphatically observed:-“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tolls for personal score-settlings or vilification of issues not pertaining to that which the system was even formed to perform..... The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta.’’…………………………………………………………………………………….“....The normal procedure in the co-existence of civil and criminal proceedings is to stay the civil proceedings pending the determination of the criminal case as the determination of civil rights and obligations are not the subject of a criminal prosecution...’’

53. From the above excerpts, the fact of civil proceedings was/is not a bar to criminal proceedings conducted in the absence of any evidence of malicious prosecution. The evidence on record is sufficient to warrant the accused person to be placed on his defense. The Respondent did not advance any evidence of coercion, malice or vendetta by the Police or Prosecution and the matter ought to have been heard to its logical conclusion and determined on merit whether by acquittal or conviction based on the evidence on record.

54. The Appellant relied on Section 348A of CPC;

Right of appeal against acquittal, order of refusal or order of dismissal(1)When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.(2)If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.and sought that this Court if appeal is successful to substitute the acquittal with a conviction against the Accused person. Although the Court finds that the acquittal was not appropriate in the circumstances as per the record, this Court lacks requisite jurisdiction to hear and determine the matter in the 1st instance. Secondly, the Accused is entitled to fair hearing enshrined by Article 50 COK 2010 and not to be condemned unheard and since the Accused person was not put on his defense the Court would not fairly convict the Accused person. 55. In the circumstances, the justice of the case demands that the matter is remitted to the Trial Court; Chief Magistrates’ Court Machakos for hearing and determination of the case as per the charges preferred by DPP/Prosecution as required by Section 354 CPC.Section 354 (3) (bb) CPC provides as follows;in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High court thereon to the subordinate court for determination, whether by way of rehearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as High Court may think fit;

Disposition 1. The Appeal filed on 23rd November, 2022 is upheld and the order of acquittal under Section 210 CPC is set aside forthwith.

2. The matter is remitted to Chief Magistrate Machakos for hearing and determination in any other Court other than the Trial Court.

3. The DR MHC to issue Witness Summons to the Accused person and/or his advocate on record or both to appear before CM MHC for allocation hearing and determination of the on the presently preferred charges.

4. The Accused person bond /bail terms shall be reinstated.

5. No orders as to costs.

DELIVERED SIGNED DATED IN OPEN COURT IN MACHAKOS ON 6TH DAY OF JUNE, 2022. ( VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE