Republic v Wainaina alias Njaramba [2022] KEHC 14071 (KLR)

Republic v Wainaina alias Njaramba (Criminal Case E041 of 2020) [2022] KEHC 14071 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14071 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E041 of 2020

TM Matheka, J

October 19, 2022

Between

Republic

Prosecution

and

Francis Kamau Wainaina alias Njaramba

Accused

Ruling

BAIL REVIEW 1. The accused is charged with murder contrary to section 203 as read with 204 of the Penal Code. It is alleged that on December 8, 2020 at Kikapu Location Njoro Sub County Nakuru County he murdered Richard Maganjo Wangai. He pleaded not guilty on December 17, 2020 before court number 4. He was admitted to bond of Kshs 500,000/= with surety of similar amount.

2. By the time the matter was re-allocated to me on March 30, 2022, he had not been able to raise bond. On April 27, 2020 I requested for a bail review report. It was filed on October 11, 2022 by probation and after care services (probation and after care services).

3. The only issue is whether the accused’s bond terms ought to be reviewed. To be released on bond or bail pending trial is a constitutional right under article 49(1) (h). The amount of bond must be reasonable, shall not be excessive, and shall be fixed with regard to the circumstance of the case. Accused was granted bond more than one (1) year ago, and has not been able to raise the same. Clearly that is an indication of his inability to raise the same and this court is bound to review the same, so as not to deny his right.

4. In order to comply with section 123 and 123A of the Criminal Procedure Code, I sought a bail review report from probation and after care services.

5. The report paints the picture of a sixty-eight (68) year old man, violent, drug and substance abuser, a danger to the community and family where he comes from and a liar, a person said to have been charged twice with assault and causing bodily harm to his sister and another victim in the community, a person who is feared by the local elders that nyumba kumi volunteers withdrew for fear of being killed, a person who issues death threats with every breath that he takes.

6. Somehow, all the information of serious criminal tendencies escaped the investigating officer such that at the time of plea, the state had no objection to bond.

7. How then, would it be that two (2) years after the alleged offence, there are people who are so vehemently opposed to his being released on bond?

8. The probation and after care services officer one E Kwamboka makes no reference to this very crucial fact, an indication that she may not have read the court file.

9. While the possibility of family feuds may exist, it is noteworthy that the report is general, makes no specifics, e.g the alleged charges of attacking other persons, causing harm, threats to kill being withdrawn. There is not a single reference to an OB number, or a police file case number, a court file case number or even the police station where this was reported.

10. Probation and after care services reports are meant to be factual, the social inquiry reports which the officer has made a demonstrable effort to triangulate.

11. This particular report sounds like the voice of one person whose veracity the probation and after care services officer made no effort to establish, and if she did, she omitted those facts from the report that was presented to court. The danger is that in the event the accused person the subject of the report seeks to challenge the factual contents of the report it may all turn out to be unsubstantiated. Then what value will that report be?

12. I am not saying that the circumstances on the ground cannot change even after an accused has taken plea and is in custody. However it is the dusty of the probation and after care services officer to lay the provide that information.

13. A probation and after care services report is serious report whose content a court seeks so that it can rely upon. Sources of information must be established to be reliable and triangulated. I will not tire to say this; that a probation and after care services officer bears a heavy statutory burden to provide the court with reports that can be relied upon.

14. In the circumstances of this case, I consider the report to be unreliable.

15. In this case bond terms had already been set at Ksh 500,000 with a surety of the same amount. The same is reviewed to Ksh 200,000/= with a surety of similar amount.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 19TH DAY OF OCTOBER, 2022. MUMBUA T. MATHEKAJUDGEIn the presence of:Court Assistant: JenniferFor State: Ms. MurungaFor accused: N/AAccused: present