Kitheka alias Sisi v Republic (Criminal Case E021 of 2024) [2024] KEHC 17272 (KLR) (18 November 2024) (Ruling) Neutral citation: [2024] KEHC 17272 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL CASE E021 OF 2024 NIO ADAGI, J NOVEMBER 18, 2024 BETWEEN MATHIAS MWANZIA KITHEKA ALIAS SISI .................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant/Accused person, Mattias Mwanzia Kitheka alias Sisi 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 the night of 11/08/2024 at Ulaani village, Kathama Location, Mwala Sub-location within Machakos County, murdered Attanas Mutiso Kithanda. 2. When the Applicant was arraigned before the court on 01/10/2024 for plea taking, he denied the charge and his learned counsel Mr. Nzioka appearing along side Ms Katee, 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 29/10/ 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17272/eng@2024-11-18 1
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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. 7. The Applicant appear 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 of the Applicant has exhibited willingness to source for the necessary documents to help him secure bond if granted and promised to protect and support the Applicant if released and ensure he attends court when required. 9. In conclusion, the report recommend that the Applicant bond be deferred to a later date when the key witnesses have testified, however this 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. In addition, no affidavit has been filed by the Investigating Officer to identify who the key witnesses are. It is not known when the purported key witnesses are likely to testify in the case. 10. 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. 11. 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. 12. I see no reason to deny the Applicant bond. I proceed to release him on bond on conditions set out under final orders below. 13. Final Orders: i. The Applicant will be released upon signing bond of Kshs.500,000/= with two 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. DATED, SIGNED & DELIVERED AT MACHAKOS THIS 18TH NOVEMBER 2024 NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17272/eng@2024-11-18 2
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