1. The Accused persons are jointly charged along with others not before this court with three counts of Murder contrary to section 203 as read with section 204 of the Penal Code (Chapter 63 of the Laws of Kenya). All alleged offenses are stated to have taken place on 31 st May 2026, in Machakos Township, Machakos Sub-County, within Machakos County where the Accused persons are said to have murdered Charles Kioko Mutiso, Kennedy Katuu Muthungu and Stanely Mbithi Muthungu.
2. The Accused persons’ prayers to be released on bail after they were arraigned and charged have been opposed by the Prosecution through the Affidavit of the Investigating Officer, 236172, ASP Henry Rabala sworn on 28 th July 2026. I have also considered the arguments by the parties and their respective counsel on this issue and I now issue this ruling on whether or not the Accused persons should be released on bail or bond pending the hearing and determination of this case.
3. It is common ground that Article 49(1)(h) of the Constitution grants an accused person the right to be released on bond or bail on reasonable terms and conditions pending trial, unless there are compelling reasons not to be released. Further, the Bail and Bond Policy Guidelines formulated by the Judiciary requires courts in granting bail to take into consideration, inter alia, the facts and circumstances of each case; and to balance the rights of an accused person against the interests of justice. It is also not lost to the court that the granting of bail is an exercise of discretion (see Babayao v Republic [2019] KECA 93 (KLR)]
4. Lesiit J., (as she was then) in Republic v Zacharia Okoth Obado [2018] KEHC 4109 (KLR), cited the court’s (Emukule J.,) decision in Republic v Milton Kabulit & 6 Others [2011] KEHC 2839 (KLR) that set out compelling reasons for declining bail as including:
i. nature of the offence,
ii. strength of the evidence, which supports the charge,
iii. the gravity of the punishment in the event of conviction,
iv. the previous criminal record of the applicant,
v. the probability that the accused may not present or surrender himself for trial,
vi. the likelihood of further charges being brought against the accused,
vii. the likelihood of the accused interfering with the witnesses or may suppress any evidence that may incriminate him,
viii. the probability of finding the applicant guilty as charged,
ix. the detention for the protection of the accused,
x. the necessity to procure medical or social report pending final disposal of the case.
The court also cited Criminal Procedure Bench Book at para. 105 which outlines non-exhaustive compelling reasons to include; likelihood accused may fail to attend court; may commit or abet the commission of a serious offence; endanger the safety of victims; interfere with witnesses or evidence; endanger national security or public safety; and protection of the accused person . This court has also always stated that the prosecution has the burden of proving compelling reasons to justify the denial of bail (see Republic v Gahohi & 2 others [2026] KEHC 10530 (KLR)]
5. As stated, the accused are charged with three counts of Murder with is a capital offence and the severity of the charge and the gravity of the potential sentence which is death are significant factors that the court is to consider. The Prosecution’s deponent describes a brutal and premeditated attack that the 1 st Accused is alleged to have raised a false alarm, luring the victims who were then brutally beaten with stones and sticks, deeply cut severally with a panga, doused in petrol and set ablaze. This is an extremely violent and heinous crime and I find that the strength and nature of these allegations, at this preliminary stage, present a very strong case for the Prosecution and weigh heavily against the grant of bail.
6. The Prosecution’s deposition also indicates that the 1 st Accused Person called people including the 2 nd and 3 rd Accused Persons to the scene which implies that there were other witnesses present. The court in Obado(supra) noted that interference with the case can be indirect and given the extreme violence of the crime, there is a significant risk that witnesses, who may be from the same community, could be intimidated or coerced into silence. The Accused Persons’ alleged actions in orchestrating the mob attack demonstrate a capacity for violence and influence that could be used to interfere with the judicial process.
7. It is also my finding that the case is clearly complex, involving three Accused Persons, three victims and multiple others who are not before the court and releasing the Accused Persons at this juncture could potentially jeopardize the ongoing investigations by making it easier to destroy evidence or influence potential suspects who are still at large. Further, the nature of the crime, a public lynching and murder, is likely to cause public outrage and a breakdown of law and order in the community. Granting bail to the individuals accused of such a heinous act would risk undermining public confidence in the justice system. The safety of the community and the need to demonstrate that such violence will not be tolerated are paramount.
8. Whereas I agree with the Accused Persons that the court must balance their constitutional right to bail and their right to be presumed innocent against the compelling reasons provided by the Prosecution, these rights does not automatically translate to a right to unconditional freedom. Let it not be lost that the purpose of bail is not to punish but to ensure the Accused Persons’ presence at trial.
9. In light of the above, I must conclude that there are indeed compelling reasons to deny bail to the Accused Persons. This case is exceptionally serious as it involves three counts of murder, committed in a brutal and public manner. There is a high risk of witness interference as the Accused Persons are alleged to have orchestrated a violent mob attack, demonstrating their capacity to influence and intimidate. Further, releasing them at this point could hinder the search for other suspects and the gathering of crucial evidence. The facts and circumstances of this matter overwhelmingly suggest that the Accused Persons should remain in custody pending the hearing and determination of their case. They may seek re-consideration of the issue of their bail at a later stage of the proceedings, in case of changed circumstances especially where crucial witnesses have testified. It is so ordered.
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Muteti for the Accused Person
2. Ms. Nzau watching brief for the Victims Family
3. Ms. Machuma for the Prosecution
4. Abdisalan- Court Assistant
2 | Page
2. The Accused persons’ prayers to be released on bail after they were arraigned and charged have been opposed by the Prosecution through the Affidavit of the Investigating Officer, 236172, ASP Henry Rabala sworn on 28 th July 2026. I have also considered the arguments by the parties and their respective counsel on this issue and I now issue this ruling on whether or not the Accused persons should be released on bail or bond pending the hearing and determination of this case.
3. It is common ground that Article 49(1)(h) of the Constitution grants an accused person the right to be released on bond or bail on reasonable terms and conditions pending trial, unless there are compelling reasons not to be released. Further, the Bail and Bond Policy Guidelines formulated by the Judiciary requires courts in granting bail to take into consideration, inter alia, the facts and circumstances of each case; and to balance the rights of an accused person against the interests of justice. It is also not lost to the court that the granting of bail is an exercise of discretion (see Babayao v Republic [2019] KECA 93 (KLR)]
4. Lesiit J., (as she was then) in Republic v Zacharia Okoth Obado [2018] KEHC 4109 (KLR), cited the court’s (Emukule J.,) decision in Republic v Milton Kabulit & 6 Others [2011] KEHC 2839 (KLR) that set out compelling reasons for declining bail as including:
i. nature of the offence,
ii. strength of the evidence, which supports the charge,
iii. the gravity of the punishment in the event of conviction,
iv. the previous criminal record of the applicant,
v. the probability that the accused may not present or surrender himself for trial,
vi. the likelihood of further charges being brought against the accused,
vii. the likelihood of the accused interfering with the witnesses or may suppress any evidence that may incriminate him,
viii. the probability of finding the applicant guilty as charged,
ix. the detention for the protection of the accused,
x. the necessity to procure medical or social report pending final disposal of the case.
The court also cited Criminal Procedure Bench Book at para. 105 which outlines non-exhaustive compelling reasons to include; likelihood accused may fail to attend court; may commit or abet the commission of a serious offence; endanger the safety of victims; interfere with witnesses or evidence; endanger national security or public safety; and protection of the accused person . This court has also always stated that the prosecution has the burden of proving compelling reasons to justify the denial of bail (see Republic v Gahohi & 2 others [2026] KEHC 10530 (KLR)]
5. As stated, the accused are charged with three counts of Murder with is a capital offence and the severity of the charge and the gravity of the potential sentence which is death are significant factors that the court is to consider. The Prosecution’s deponent describes a brutal and premeditated attack that the 1 st Accused is alleged to have raised a false alarm, luring the victims who were then brutally beaten with stones and sticks, deeply cut severally with a panga, doused in petrol and set ablaze. This is an extremely violent and heinous crime and I find that the strength and nature of these allegations, at this preliminary stage, present a very strong case for the Prosecution and weigh heavily against the grant of bail.
6. The Prosecution’s deposition also indicates that the 1 st Accused Person called people including the 2 nd and 3 rd Accused Persons to the scene which implies that there were other witnesses present. The court in Obado(supra) noted that interference with the case can be indirect and given the extreme violence of the crime, there is a significant risk that witnesses, who may be from the same community, could be intimidated or coerced into silence. The Accused Persons’ alleged actions in orchestrating the mob attack demonstrate a capacity for violence and influence that could be used to interfere with the judicial process.
7. It is also my finding that the case is clearly complex, involving three Accused Persons, three victims and multiple others who are not before the court and releasing the Accused Persons at this juncture could potentially jeopardize the ongoing investigations by making it easier to destroy evidence or influence potential suspects who are still at large. Further, the nature of the crime, a public lynching and murder, is likely to cause public outrage and a breakdown of law and order in the community. Granting bail to the individuals accused of such a heinous act would risk undermining public confidence in the justice system. The safety of the community and the need to demonstrate that such violence will not be tolerated are paramount.
8. Whereas I agree with the Accused Persons that the court must balance their constitutional right to bail and their right to be presumed innocent against the compelling reasons provided by the Prosecution, these rights does not automatically translate to a right to unconditional freedom. Let it not be lost that the purpose of bail is not to punish but to ensure the Accused Persons’ presence at trial.
9. In light of the above, I must conclude that there are indeed compelling reasons to deny bail to the Accused Persons. This case is exceptionally serious as it involves three counts of murder, committed in a brutal and public manner. There is a high risk of witness interference as the Accused Persons are alleged to have orchestrated a violent mob attack, demonstrating their capacity to influence and intimidate. Further, releasing them at this point could hinder the search for other suspects and the gathering of crucial evidence. The facts and circumstances of this matter overwhelmingly suggest that the Accused Persons should remain in custody pending the hearing and determination of their case. They may seek re-consideration of the issue of their bail at a later stage of the proceedings, in case of changed circumstances especially where crucial witnesses have testified. It is so ordered.
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Muteti for the Accused Person
2. Ms. Nzau watching brief for the Victims Family
3. Ms. Machuma for the Prosecution
4. Abdisalan- Court Assistant
2 | Page