Republic VS BECKHAM MULEMA AVUKUSI ALIAS BECKHAM AND TONY WANJALA MALALA ALIAS TONY Republic VS BECKHAM MULEMA AVUKUSI ALIAS BECKHAM AND TONY WANJALA MALALA ALIAS TONY

The accused persons are charged with the offence of Murder under Section 203 as read with 204 of the Penal Code.
The prosecution has so far called two witnesses and the matter is for further hearing on 3/6/2025.
The two accused persons have through counsel applied to be released on bail pending the hearing of the case.
The applicants have hinged their applications under Article 49 (1) (h) of the Constitution as read together with Section 123 of the Criminal Procedure Code.
The two applications were made orally but the state through an affidavit sworn by No. 78812 PC PAUL NYORO of DCI Starehe opposed the application.
The prosecution advanced two reasons for asking the court to deny bail.
The prosecution argued that if the two accused persons are released on bail they might be exposed to the risk of harm by members of the public because at the time of arrest they were literally at the verge of being killed by a marauding mob which had already set upon them.
According to the prosecution the two accused persons were rescued from the hands of the angry members of public by the police.
The prosecutor argued that if released back to the community there is most likely going to be a breach of peace and public order.
The other compelling reason is that the accused persons are likely to interfere with witnesses who are well known to them.
The prosecution named one Augustu Otieno who is yet to testify as one of the key witnesses the accused might interfere with.
The prosecution contends that the court must guard against the suppression of evidence through intimidation of witnesses by the accused because that would lead to the defeat of the interests of Criminal justice.
The prosecution concluded by urging the court to find that the two reasons are compelling enough to justify the denial of bail.
The defence countered the argument by the prosecution by arguing that the two accused person are not a flight risk thus bail should not be denied.
The defence counsel told the court that the two have a fixed abode and they would be willing to comply with all the conditions the court would impose.
According to the defence reasons stated by the prosecution do not meet the threshold of compelling reasons to warrant the denial of bail.
The accused persons argued further, that they do not pose any danger to the public and their release on bail is not likely to trigger any problems in the community.
Counsel further boldly argued that the accused persons are capable of defending themselves should that become necessary thus the court should not hold them in custody pending trial.
The right to bail under Article 49 (1) (h) of the Constitution is a constitutional right which is alienable and should not be whimsically denied. The prosecution must prove on a balance of probabilities that there are compelling reasons for the court to deny an accused person bail.
The Court of Appeal in Michael Juma Oyamo & another v Republic [2019] eKLR adopted the definition of the phrase “compelling reasons” in the case of R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 where the Learned Judge held as thus; -

“….. The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.”
The Court went further to lay down some of the compelling reasons to include the likelihood that the accused will fail to attend court; commit or abet the commission of, a serious offence; endanger the safety of victims, individuals or the public; interfere with witnesses or evidence; endanger national security or public safety; and where it is necessary for the protection of the accused.

The reasons advanced by the prosecution fall squarely within the reasons identified by the Court of appeal as amounting to compelling reasons that a court must bear in mind whenever it is called upon to determine the matter of bail.
In this case the protection of the accused from potential harm by members of the public has been raised by the prosecution and that is a matter the court cannot overlook considering the circumstances surrounding the arrest of the accused person. The court has so far received evidence that indicates that the police officers rescued the accused persons from irate members of the public who would have otherwise lynched the accused.
Their safety therefore is a matter of concern to this court. Although the court appreciates that the state has a duty to protect them it is abundantly clear in this case that the accused persons are likely to be exposed to great danger and their argument that they are capable of defending themselves cannot by itself be taken to mean that the court should proceed and grant bail on the assumption that they would be able to fend off any persons who may go after them should they be released on bail.
The court also acknowledges that in determining whether or not to grant bail, the safety of victims, individuals or the public is a compelling reason to justify the denial of bail.
The prosecution has expressed fear that there is real likelihood of public disturbance or breach of the peace should the accused set foot in the area where they resided before their arrest.
The Criminal Procedure Code provides under Section ;-123A. (1) Subject to Article 49(1)(h) of the Constitution and notwithstanding Section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—

(a) the nature or seriousness of the offence;

(b) the character, antecedents, associations and community ties of the accused person;

(c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;

(d) the strength of the evidence of his having committed the offence;

(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—

(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;

(b) should be kept in custody for his own protection(emphasis mine)
The accused persons are clearly exposed to great danger of harm and in this court’s view in line with Section 123A (2) (b) should be kept in custody for their own safety and protection. it would be dereliction of duty by this court to set the two accused persons at liberty knowing too well that there is every likelihood that they could be subjected to mob injustice.
The Bail and Bond Policy Guidelines under section 4.9 further lists the factors to be considered in determining what compelling reasons are and includes; -

a) The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty
b) The strength of the prosecution case
c) Character and antecedents of the accused person
d) The failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bond
e) Likelihood of interfering with witnesses
f) The need to protect the victim or victims of the crime from the accused person
g) The relationship between the accused person and potential witnesses
h) Child offenders
i) The accused person is a flight risk
j) Whether accused person is gainfully employed
k) Public order, peace or security.
l) Protection of the accused person. (Epmhasis mine)

The prosecution have made a strong case that meets the threshold of compelling reasons as contemplated under Article 49 (1) (h) read together with the Bail and Bond Policy Guideline. The issue of interference with witnesses and in particular the witness identified by the prosecution is a key consideration that this court must take into account and so is public order, peace or security.
In conclusion, this court finds that the two accused persons are unsuitable for admission to bail and shall remain in custody until this matter is heard and determined.
It is so ordered.