Republic v Ndungai & 2 others [2023] KEHC 23532 (KLR)

Republic v Ndungai & 2 others (Criminal Case E004 of 2021) [2023] KEHC 23532 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23532 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Case E004 of 2021

TM Matheka, J

October 11, 2023

Between

Republic

Prosecution

and

Paul Muvea Ndungai

1st Accused

Brian Kyalo Peter

2nd Accused

Dickson Mulwa Muoki

3rd Accused

Ruling

1. The three accused persons are jointly charged itch murder c/s 203 as read with s. 204 of the Penal Code. It is alleged that on the 26th January 2021 at Katulie Village Kilungu Sub County Makueni County they jointly murdered Kakui Ndiso.

2. They took plea on the 15th July 2021 and pleaded not guilty.

3. No bond was granted.

4. There is nothing on record to show that it was opposed.

5. The matter has now been caught up in the boycott by members of Law Society of Kenya who have taken up pro bono matters due to their differences with the Office of the Chief Registrar Judiciary, prompting a review of bond terms.

6. During the prison visit on the 11th of August 2023, the accused person’s asked for bond. There was no objection and bond terms were set out at Ksh 150,000 with a surety of a similar amount for each. In addition, I sought a Bail Report and the same was filed on 13th September 2023.

7. With respect to the 1st accused, there are numerous allegations against him. It is alleged that he is an ex-convict for two offences, creating disturbance and robbery with violence. However, no specific time was mentioned as to when he may have served time and no case file was quoted. There was nothing on the record to support this. The family is ready to stand surety for him. The family of the victim state that they will be traumatized if they see him around. That cannot be a reason to deny him bond because he can be ordered to stay away from the village during the pendency of the matter. He is not a flight risk, will not interfere with witnesses as many of them have testified.

8. The 2nd accused, he has no allegations of past criminal life and the family is ready to sand surety for him. He is not a flight risk, will not interfere with witnesses as many of them have testified.

9. For the 3rd accused the report is similar to that of the 1st accused except there are no allegations of past criminal history.

10. It is noteworthy that for 1st and 3rd accused the report states that their presence in the community will re traumatise the victim’s family yet the same is not said of the 2nd accused despite the fact that they face a joint charge of murder. No explanation is made in the reports why this is so, and it is difficult for the court to understand the distinction.

11. Having considered the report for each accused person, I find that the bond terms granted are reasonable and the same are retained. The Variation is that they can avail two sureties each of Ksh 75000. Orders accordingly.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 11TH OCTOBER 2023. .......................................MUMBUA T. MATHEKAJUDGECA MwiwaAccused presentKazungu for state