Republic v Ndeto & 4 others (Criminal Case E010 of 2025) [2025] KEHC 19536 (KLR) (25 September 2025) (Ruling) Neutral citation: [2025] KEHC 19536 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CRIMINAL CASE E010 OF 2025 EN MAINA, J SEPTEMBER 25, 2025 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND BENJAMIN NZOMO NDETO .............................................................. 1ST ACCUSED PAUL MAKAU NDETO ........................................................................ 2ND ACCUSED STELLAMARIS MBITHE MULI .......................................................... 3RD ACCUSED ANN MUTHEU MUTETI ..................................................................... 4TH ACCUSED ZAKAYO MUNYAO KAMANZA ALIAS KITUNGU ....................... 5TH ACCUSED RULING 1. 2. Before this court is a Notice of Motion Application dated 24th July 2025 seeking the following orders; a. Spent b. The Honourable Court be pleased to reinstate the Notice of motion dated 8th July 2025. c. The Honourable Court be pleased to review/vary the bond terms issued to the accused persons on 19th June 2025. d. The costs be in the cause. The gist of the applications dated 8th July 2025 and 24th July 2025 is that the accused persons cannot meet the conditions attached to the bond granted to them by this court and hence the same ought to be reviewed. The grounds for the application are that the 5th Accused person’s mother has been bedridden due to sickness and has no property in her name to secure bond for her son; the 4th accused person is a widow and her children do not have property registered in their names and the only available property https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19536/eng@2025-09-25 1
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is registered in her mother’s name to hold in trust for her husband’s family and that the accused is hypertensive and prejudiced by being in custody. That the 1st and 2nd accused persons are brothers and their father has only two titles that can be used to secure bond for his sons. Dr. Musau, Advocate for the accused persons urged this court to vary the bond to Kes 1,000,000 with one surety for the 1st, 2nd and 3rd accused persons and release the 4th and 5th accused persons on free bond or favourable cash bail of Kes 250,000. 3. The State filed a replying affidavit dated 16th July 2025 in opposition to the application. Counsel for the State deposed that the conditions attached to the bond were reasonable; that given the seriousness of the offence and the sentence prescribed thereto the terms should not be reviewed downwards. 4. The application was canvassed by way of written submissions. The Applicants filed submissions on 21st August 2025 in which counsel submitted thatthat there are no compelling reasons to justify the continued detention of the accused persons as required under Article 49(1)(h) of the Constitution; that the accused persons have demonstrated willingness to comply with all lawful conditions and have no prior records of misconduct. It was submitted that their continued incarceration under unattainable bond terms amounts to a constructive denial of bail, contrary to the spirit and letter of the Constitution. 5. It was contended that the requirement for KShs.500,000 with two sureties of similar amount has rendered the release of the accused persons impossible given their socio-economic realities. Lastly, it was submitted that the court had power to review the bond terms. In support of its submissions, reliance was placed on the cases of Harish Mawjee & another v Republic [2020] KEHC 1861 (KLR), Republic v John Ochango [2023] KEHC 26992 (KLR) and the case of Oketch v Republic [2022] KEHC 10065 (KLR). 6. On behalf of the State, it was argued, it was submitted that the bond terms are reasonable in view of the seriousness and circumstances of the offence. Counsel for the State urged this court to maintain the same terms and opined that the same were not only reasonable but also lenient. Analysis and determination. 7. The accused persons are charged with the offence of murder contrary to Section 204 as read together with Section 205 of the Penal. They were granted a bond of Kes 500,000 each with two sureties of like amount. This despite that their release on bond was vehemently opposed by the State. 8. Bond is a constitutional right which can only be withheld if there are compelling reasons. In this case the prosecution was apprehensive that the accused persons would interfere with witnesses if released on bond a reason which was dismissed by this court. Bond must be granted upon reasonable terms and in considering what is reasonable the court is enjoined to consider, inter alia, the nature and seriousness of the offence. The main consideration in setting the terms is that the accused person will turn up for the trial. In this case this court also took into account the affordability of the terms. The terms are also consistent with those set for accused persons facing the similar charges and are are quite reasonable. Neither the accused person nor his advocate can dictate the conditions or terms attached to the bond. The conditions are never a contest between the accused person and the prosecution or relatives of the victim. As I have always stated let the accused persons present their sureties to the Deputy Registrar for assessment and let the Deputy Registrar be the one to determine their suitability. I have not heard any of the accused persons saying that their choice of sureties was rejected. I therefore find no merit in this application and the same is dismissed. RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 25TH DAY OF SEPTEMBER 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19536/eng@2025-09-25 2
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E N MAINA JUDGE In Presence Of: Miss Kaburu for the State. Miss Mutindi Munywoki Advocate for DR Musau for accused persons. Geoffrey Court Assistant/Interpreter. The applicants virtually from Machakos GK Prison. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19536/eng@2025-09-25 3
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