Ashinah v Republic (Criminal Case E022 of 2024) [2024] KEHC 17266 (KLR) (27 November 2024) (Ruling) Neutral citation: [2024] KEHC 17266 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL CASE E022 OF 2024 NIO ADAGI, J NOVEMBER 27, 2024 BETWEEN DAVID MUTUA ASHINAH ................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant/Accused person, David Mutua Ashinah is charged with the ofience of Murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the ofience are that the Applicant on 2nd day of June 2024 at Kantara Estate in Matungulu Sub-County within Machakos County, murdered Arachel Njeri Karobia. 2. When the Applicant was arraigned before the court on 2nd of October 2024 for plea taking, he denied the charge and his learned counsel Mr. Langalanga, immediately made an oral application for him to be admitted to bail or bond on reasonable terms pending the hearing and determination of his case. 3. The application was not opposed by the State and the court ordered that the probation department prepares a Pre-bail report of the Applicant. 4. The pre- bail report for the Applicant was filed in court on 13/11/2024. I have keenly considered the said report on the introduction and source of information, family back ground, personal circumstances, previous bail/bond history, attitude towards bond, ability to meet bond terms, Victim’s circumstances, Community report and the conclusion by the Probation Officer. 5. I am able to gather that the Applicant has been described positively as a person of good conduct, has a fixed place of abode at his rural home thus he is not a flight risk. 6. The victim’s family is opposed to the Applicant being considered for bond terms citing that the Applicant is a security threat to them. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17266/eng@2024-11-27 1
page 1 of 2
7. The Applicant has a fixed place of abode and has no previous records of jumping bond. He appears to have shown positive attitude towards being granted favourable bond terms and is willing to abide by the bond terms if granted. 8. The family members of the Applicant are still in shock of the alleged incidence and are not willing to secure bond for him. In addition, the Applicant’s family have no valuable assets and none of them is in permanent employment. Their capability of security bond for the Applicant is almost nil. 9. The victim’s family was opposed to his consideration for bond citing fear that he may jump it. 10. The community described him positively though they were in shock too to learn of the incident which happened elsewhere. However, they were aggrieved thus had reservations on the Applicant being granted bond. 11. In conclusion, the report recommend that the Applicant is unsuitable for bond, however the recommendation is subject to the court’s discretion. This court observes that no objection has been raised by the State on the application for bond. 12. Article 49(1) (h) of the Constitution of Kenya provides that an arrested person has the right to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released. No compelling reasons have been shown in this case. 13. The purpose of a pre-bail report is intended to inform the court circumstances that relate to the ofience and guide in determining whether to release an accused person on bond and under what terms. 14. I see no reason to deny the Applicant bond. I proceed to release him on bond on conditions set out under final orders below. 15. Final orders: i. The Applicant will be released upon signing bond of Kshs.500,000/= with three contact persons which shall be approved by the Deputy Registrar of this Court. ii. Once released, the Applicant shall attend the Deputy Registrar once every two months until further orders of this court and shall also attend the court on all hearing dates without fail. iii. The Applicant is restrained from issuing threats or interfering in whatever manner with witnesses or Victims’ family members in this case. iv. Failure to comply with the above conditions shall lead to cancellation of the Applicant’s bond. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 27TH NOVEMBER 2024 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 27TH NOVEMBER 2024 In the presence of : In person .......... for Applicant Agatha ............. for Respondent Milly Grace ......... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17266/eng@2024-11-27 2
page 2 of 2