'Mental' stability delays bail ruling for Mbithe, children in Mutiso murder case

 

Mbithe and her two children questioned Ndetei’s mental stability and capacity to swear an affidavit relied upon in opposing the accused persons’ release on bail. [File, Standard]

Rose Mbithe and her two children will spend more time in custody after the High Court postponed its bail ruling to first determine a fresh application seeking to question Dr Victoria Mutiso’s husband, Professor David Ndetei, over his mental capacity to swear an affidavit opposing their release on bail.

Milimani High Court Judge Alexander Muteti on Friday deferred the bail ruling, which had been scheduled for October 19, 2026, pending the determination of the fresh application seeking to reopen the bail application hearing and summon Mutiso's husband, Professor David Ndetei, for cross-examination.

Mbithe and her two children, through Lawyer Joel Mbaluka, questioned Ndetei’s mental stability and capacity to swear an affidavit relied upon in opposing the accused persons’ release on bail, arguing that the court needed to establish whether the evidence was reliable.

In his ruling, Justice Muteti said the defence had made the fresh application after the parties had concluded their arguments on bail, meaning the court would first have to determine whether to reopen the bail hearing proceedings.

“The advocates for the first, second and third accused, supported by counsel for the sixth accused, have made an application for summoning of Professor David Ndetei to appear for cross-examination. This application has been made after arguments are closed in respect of the bail application,” the judge said.

He added that the court would deliver its ruling on the fresh application on October 19, 2026, with the decision on bail to await the determination of that application.

Lawyer Mutinda, representing the defence, told the court that the application was intended to help establish the truth and ensure the accused persons’ right to a fair hearing was protected.

“The affidavit by prof dated October 5, 2026 opposing bail is from someone with a confirmed mental infirmity,” Lawyer Mutinda submitted.

The defence further claimed it had received information that Ndetei had been hospitalised in a high-dependency unit (HDU) around the time the affidavit was allegedly made.

The lawyers urged Justice Muteti to summon Ndetei for questioning, arguing that his mental capacity and the circumstances surrounding the preparation of the affidavit required clarification before the court could determine the bail application.

They also sought to have Mbithe, her son Chris Mulwa and daughter Angela Mulwa escorted to IPOA offices to facilitate investigations into their complaints, including alleged assaults at their residence and various police stations in Kilimani and Kileleshwa.

However, the prosecution, through State Counsel Jalson Makori, opposed the application to summon Ndetei, arguing that the defence had previously been allowed to seek cross-examination but had failed to do so.

Makori told the court that the window for making the request had closed and argued that the pre-bail reports ordered by the court could address some of the issues raised by the defence.

He also opposed requests for orders involving the Independent Policing Oversight Authority (IPOA), arguing that the authority was not a party to the proceedings and that the court should not direct how it conducts investigations.

In his directions, Justice Muteti said the court would first determine the fresh application before proceeding with the bail ruling.

“The ruling on the bail application shall await the determination and delivery of the said ruling in respect of the two issues,” the judge directed.

The court scheduled the ruling on the fresh application for October 19, 2026, at 10am, postponing the bail decision until the issues are resolved.

The judge also directed that the first, second, third and sixth accused persons be escorted to the prison clinic for treatment.

If the medical officers are unable to handle their medical conditions, the officer in charge should consider referring them to another government health facility.

Aggrieved by the court’s decision to postpone the bail ruling further, Mbithe attempted to address the judge directly, but Justice Alexander Muteti declined her request and cautioned her to speak through her lawyer.

“Mbithe, there is a reason why the framers of our law decided all murder suspects must be represented. Please note that the reason why we have counsel acting for suspect or accused persons in murder cases is not just a cosmetic arrangement; there are real good reasons. Please speak through your counsel,” the judge said.

However, earlier in the proceedings, Lawyer Mbaluka, representing Mbithe and her children, urged the court to release them on bail, arguing that they were willing to comply with any conditions imposed.

He told the court that Mbithe had a fixed abode in Karen and argued that her children, Angela and Chris Mulwa, were advocates who understood the consequences of absconding from court.

The lawyer also told the court that Angela was a single mother of two children aged three and six, who had been left without anyone to escort them to school during her detention.

The seven accused persons are charged with the murder of Dr Mutiso

They are Mbithe Mulwa, also known as Rose Mbithe Ndetei; her children Chris Mulwa and Angela Mulwa; Police Constable Elijah Kibelion Kimoi; Maritim Kimutai, alias Kim; Police Constable Collins Bett Kiplangat; and Pius Muiru Mbugua, alias Headboy.

They have denied the murder charge and are currently held at Langata Women's Prison and the Industrial Remand Prison.