Republic v Eunice Atieno Wanjiku Alias Kayuni & 1 other

5. In the meantime, on 20th May 2025, Mr Gare for the accused person informed the court that the 1st accused had a history of mental illness which required medical attention before plea was taken and that she should be released on bond pending the same. Ms Ogweno for the state informed the court that there was a mental report which had declared the 1st accuse fit to take plea and in view of the accuse contention the court ordered a second mental assessment. 6. The 2nd accused having been found fit to plea, on 23rd July 2025 , the same took plea wherein a plea of not guilty was recorded for him , the court having deferred the taking of plea for the 1st accused in view of the conflicting position on her mental status and the same referred to Mathare National Referral Hospital for treatment and for a panel of Doctors to be constituted for purposes of assessing the same in view of the two mental assessment reports thereon. 7. In the meantime, the same filed an application under certificate of urgency in which she sought the following orders: a. A declaration that her constitutional rights have and continue to be infringed b. That the court be pleased to release the applicant on reasonable but sufficient security since her family were willing to properly take care and monitor her health and grantee her appearance in court. 8. The application was supported by an affidavit sworn by the applicant mother and her Advocate on record wherein is was deposed as follows: that since the filing of the case the 1st accused had never taken plea due to a medical report dated 14th July 2015 which declared the same unfit to take plea given her mental condition and that she was yet to be transferred to the hospital as ordered by the court which was likely to compromise her mental condition. 9. It was deposed that the family was prepared and willing to ensure that she receives the necessary psychiatric care while guaranteeing her appearance in court . 10. Mr Sam Gare the accused Advocate also filed an affidavit in which he deposed that there was proof that the accused is mentally unstable and in need of constant psychiatric evaluation and treatment. It was stated that the depravation of essential medical attention constituted a direct injustice to the applicant dignity and health as the existence of mental illness or any other disability was not a justification to deprive the same of liberty and dignity. Submissions 11. At the hearing of the aid application it was submitted by Mr Gare that the applicant who had not taken plea ought to be admitted to bond as she awaits further re-assessment and until she becomes well since her mother was willing to take care of her. 12. Ms Ogweno for the state submitted that there were grounds advanced to deny the accused bond as there was no evidence that she was no longer a danger to the community and those around her and that she can only be admitted to bond under section 162(3) of CPC if she is no longer a danger to herself and society 13. On the second accused it was submitted that there were no compelling reasons advanced and that the alleged three witnesses were not named in support of which reference was made to the cases of Republic versus Sifuna and Republic versus Mugunya and another https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19362/eng@2025-12-16 2

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14. For the prosecution it was submitted that there was a tenant at the plot where the accused person used to reside who might be interfered with and that since the charges had been separated this matter can proceed for hearing. Pre- Bail Report 15. In compliance with the bail /bond policy guidelines, the court called for pre-bail report wherein it was stated ass regards the first accused that she has a close family ties who were willing to stand surety and that she had been on medication for bipolar condition for a long time. She got married to one Kamau with whom they had one child, separated and remarried one Muthama with whom she got two children before separating due to drunkenness. She later married the co-accused with who she was living as at the time of arrest while working as waitress in a bar. 16. On community ties, she was known to the area chief and village elder who did not object to her being released on bond as she had no known misconduct behaviour save for excessive alcohol consumption. 17. On the victim’s concern. it was stated that he was a younger brother of the 2nd accused and had separated from his family of wife and two children. His cousin objected to the release of the accused persons citing concern for the children of the deceased. 18. On the second accused, it was stated that his family was supportive and have been visiting him in prison. The area chief did not oppose his r4eleased on bond as he posed no threat to the public and or property. Determination 19. Bond is a constitutional right of every accused person under Article 49 and may only be limited if the prosecutions provide to court compelling reasons which the Court of Appeal in Michael Juma Oyamo & another v R [2019] eKLR stated to be forceful and convincing as to make the court feel strongly that the accused should not be released on bond, thus the accused should not be denied bond on flimsy ground but on real and cogent grounds that meet the constitutional standards. 20. These reasons are captured in section 4.9 of the Bail and bond Policy Guidelines which were further captured in section 123A (1) of the Criminal Procedure Code 21. The court however should not lose sight of the fact that the purpose of bond is and remains to secure the attendance of the accused to court during the period of his trial and that the right to liberty should never be curtailed as was stated in R v Nuseiba Mohamed Haji Osman [2018] eKLR, denial of a constitutional right is not to be treated lightly and any claim made against an accused person towards curtailing his liberty must not be made on speculation and conjectures. 22. In this matter as regards the 1st accused, she has not taken plea due to mental capacity. The family has confirmed through the affidavit by her mother that she suffers from bipolar which the family has been able to manage and are of the view that the same will not be well, managed in prison. 23. Section 162 (3) of the CPC clearly provides that if in the course of the trial the court is of the opinion that the accused is of unsound mind and is one where bail may be taken, the court may release the accused on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person sand for his appearance before the court or such officer as the court may appoint in that behalf. 24. In this matter the first accused mother has sworn an affidavit in which she has confirmed and as corroborated by the accused Advocate on record that they are willing and ready to support the accused as they had done before to secure psychiatric attention pending trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19362/eng@2025-12-16 3

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25. I am of the considered opinion and find that the accused is better taken care of in a supporting environment and having looked at the medical documents supplied to the court I have come to the conclusion that the accused should be accorded the benefit of section 162(3) of the CPC. 26. The 1st accused shall be released on a bond of Kenya shillings two hundred thousand (Kshs 200,000) to be executed by a person known to the accused who shall undertake to admit her to a psychiatric institution of their choice with the next seven days from the date of release and a report to that effect filed with the Deputy Registrar of this court within the said seven days. 27. The accused shall in the meantime be referred to Mathari Referral Hospital as earlier directed by the court for purposes of being examined by a panel of Doctors for a third mental assessment report for the purposes of this trial. 28. The matter shall be mentioned before the Deputy Registrar after 3odays for purposes of receiving the said report and for further orders as regards her trial. 29. On the first accused the only ground advanced by the prosecution for opposing bail is the fact that the same is known to three witnesses and that the same was likely to interfere with them. However, the prosecution has failed to name the said witnesses and also to indicate the nature of interference. There is further no indication that there has been any attempted interference during the period of time the accused has been in custody. 30. The 2nd accused has a supportive family and the local administration is not opposed to his release on bond. 31. It therefore follows that there are no adequate compelling reasons to enable the court deny the 2nd accused his constitutional right to bond. The same shall be released on the following terms and conditions; 32. a. Bond of Kenya shillings five hundred thousand (Kshs 500,000) with one surety of similar amount b. In the alternative cash bail of Kenya shillings three hundred thousand (Kshs 300,000) with one recognized Kenyan citizen of good standing c. The 2nd accused shall make no contact with any of the intended prosecution witnesses in any form whatsoever. And it is ordered. SIGNED DATED AND DELIVERED THIS 16th DAY OF DECEMBER 2025. J. WAKIAGA JUDGE In the presence of Court assistant - Irene Ms. Ogweno for the state Mr. Gare for the accused persons. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19362/eng@2025-12-16 4

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