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The accused was charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code ,
The particulars of charges were that : On 19/3/2021 at Kasarani Estate area within Stahere subcounty in Nairobi County murdered PETER NG’ANG’A NYAMBURA .
The accused denied the charges.
The accused filed Notice of motion dated 18/11/2024: seeking to be released on bail / bond pending conclusion of the trial.
The application premised on the grounds that the court in its ruling on bail directed that the applicant was at liberty to renew his application for bond after eye witnesses testify.
The accused has been in custody since April 2021 when he was arrested and charged.
The accused person argues that the eye witnesses have testified and there remains no compelling reasons to deny him bond.
He further contends that his he is the sole breadwinner of his family and that his children and family has borne immense suffering during the period he has been in custody.
The accused further argues that his wife is unemployed and that his mother who has been taking care of the children is ailing. It is his contention that his children are unable to continue with their education since no one is able to fend for them.
That he has never been charged with any offence in the Republic and he should be accorded the benefit of presumption of innocence.
The accused has also informed the court that he has been credited merit and is of good character after attending religious training in prison thus he is unlikely to abscond should he be released on bail.
The accused filed his affidavit in support of the application. In it he deposed that he is willing to abide by the bond terms that may be issued by the court. He also attached certificates of completion of various religious courses and the ruling of the court delivered on 12/8/2021.
The prosecution did not file any response or submissions to the application.
The accused filed written submissions dated 25/3/2025 through the firm of Maina & Partners LLP which this court has carefully considered.
According to the accused the state has a duty to establish compelling reasons to justify the denial of bail. The accused cited the case of Danson Mgunya –Vs- Republic (2010) eKLR . The compelling reason that the court had been persuaded on was the pending testimony of eye witnesses.
The accused further cited the case of Nzyimi & 2 others v Republic [2023] KEHC 25763 (KLR) where the court held that all offences are bailable unless compelling reasons to deny bail exist.
It was further argued that since the witnesses have testified, the compelling reason ceased to exist.
Further that the accused has posited that he is a family man, with a young family that looks up to him. He has also exhibited that he is a person of good character while in remand, with additional religious trainings and certifications.
Analysis & Determination.
I have considered the application and submissions filed by the accused.
The accused person’s prayer for review is premised on the provisions of Section 123 of the Criminal Procedure Code and Article 49 (1) (h) of the Constitution.
The trial court has discretion to grant bail terms at any stage of the trial. Further, bail is a constitutional right that is only limited where compelling reasons are proved to exist.
The review of an order declining to grant bail is not automatic and must be granted on merit.
The court urged to consider review of bail will consider matters such as
Whether there is change in circumstances or new evidence is submitted by the accused;
Whether the impugned decision contains an error
Whether the decision is clearly inappropriate. See Republic v Kariuki [2023] KEHC 2175 (KLR.
The court in this matter declined to grant bail citing the threat to eye witness which the state was able to establish.
The court considered that had the accused been granted bail, he would have had to go back to Kasabuni where he resided with members of victim’s family who were among the key prosecution witnesses. The key witnesses described the accused as dreaded and known for criminal activities.
The court concluded that granting the accused bond at the time would most likely damage the prosecution’s case as his presence in the community would create fear and cause anxiety to witnesses thus potentially dissuading them from testifying.
So far, the witnesses perceived to be threatened have since testified. The prosecution has not raised any further compelling reasons or new circumstances to justify the denial of bail to the accused.
The predominant consideration in the granting of bail is whether or not the accused person would be able to return to court and continue with his trial. The court must therefore balance the interests of justice against the accused person’s right to bail. The interests of justice must be protected from any possible, discernible or potential compromise.
The court has considered that all the witnesses who were considered as being exposed to danger before they could testify have since given their evidence thus the only issue for consideration now would be, what are the terms that the court should impose that would guarantee his return to court to face trial.
Further detention of the accused would be unjustified and a violation of the fundamental right of the accused to liberty.
In the case of R. VS. JACQUE, 2008 N LTD 184 (CanLII) cited by justice Kasango Republic -Vs- Harun Mburu Nguchu [2021] KEHC 7707 (KLR ) the Canadian court held that it is not justified where detention is merely convenient or advantageous.
In R. V. MORALES, 1992 CanLII 53 (SCC) , [1992] 3 S.C.R. 711 the Supreme Court of Canada gave guidance to trial judges conducting bail reviews. At page 736 Lamer, C.J.C. stated:-At page 737 and stated that ::-
‘’Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a substantial likelihood of committing an offence or interfering with the administration of justice and only where this substantial likelihood endangers the protection or safety of the public. Moreover, detention is justified only when it is necessary for public safety. It is not justified where detention would merely be convenient or advantageous. Such grounds are sufficiently narrow to fulfill the first requirement of just cause under Section 11(e)."
Further, the accused personal circumstances and the fact that he has a family and is the breadwinner are also factors for consideration on bail. However, those reasons and circumstances are secondary to the accused persons guarantee not to abscond.
The court therefore considers that since the witnesses who were exposed have since testified, the accused person may now be admitted to bail on stringent conditions in order to ensure that the interests of justice are not compromised since this matter has already progressed and it would be unfortunate if the same was to collapse at the instance of the accused by failing to show up for his trial in the future.
Accordingly, the accused person shall be admitted to bail on the following terms;
A bond of ksh.1.5 million shillings plus two sureties of a similar amount
The accused person is to remain within the jurisdiction of this country until the matter is heard and determined
The accused person and his sureties shall provide mobile telephone contacts that they shall retain in use until this matter is fully heard and determined
The accused person shall not contact any of the relatives of the deceased and should that become desirable for purposes of attempting resolution of the case through Plea Bargain or any other alternative form of justice, the accused shall instruct his counsel to formally raise the matter with the DPP
The accused person and the surety shall provide details of their permanent abode
The local chief of the area identified as the fixed abode of the accused and the sureties shall issue a letter of confirmation to both which shall be filed in court directly by the chief ,
It is so ordered.
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The accused was charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code ,
The particulars of charges were that : On 19/3/2021 at Kasarani Estate area within Stahere subcounty in Nairobi County murdered PETER NG’ANG’A NYAMBURA .
The accused denied the charges.
The accused filed Notice of motion dated 18/11/2024: seeking to be released on bail / bond pending conclusion of the trial.
The application premised on the grounds that the court in its ruling on bail directed that the applicant was at liberty to renew his application for bond after eye witnesses testify.
The accused has been in custody since April 2021 when he was arrested and charged.
The accused person argues that the eye witnesses have testified and there remains no compelling reasons to deny him bond.
He further contends that his he is the sole breadwinner of his family and that his children and family has borne immense suffering during the period he has been in custody.
The accused further argues that his wife is unemployed and that his mother who has been taking care of the children is ailing. It is his contention that his children are unable to continue with their education since no one is able to fend for them.
That he has never been charged with any offence in the Republic and he should be accorded the benefit of presumption of innocence.
The accused has also informed the court that he has been credited merit and is of good character after attending religious training in prison thus he is unlikely to abscond should he be released on bail.
The accused filed his affidavit in support of the application. In it he deposed that he is willing to abide by the bond terms that may be issued by the court. He also attached certificates of completion of various religious courses and the ruling of the court delivered on 12/8/2021.
The prosecution did not file any response or submissions to the application.
The accused filed written submissions dated 25/3/2025 through the firm of Maina & Partners LLP which this court has carefully considered.
According to the accused the state has a duty to establish compelling reasons to justify the denial of bail. The accused cited the case of Danson Mgunya –Vs- Republic (2010) eKLR . The compelling reason that the court had been persuaded on was the pending testimony of eye witnesses.
The accused further cited the case of Nzyimi & 2 others v Republic [2023] KEHC 25763 (KLR) where the court held that all offences are bailable unless compelling reasons to deny bail exist.
It was further argued that since the witnesses have testified, the compelling reason ceased to exist.
Further that the accused has posited that he is a family man, with a young family that looks up to him. He has also exhibited that he is a person of good character while in remand, with additional religious trainings and certifications.
Analysis & Determination.
I have considered the application and submissions filed by the accused.
The accused person’s prayer for review is premised on the provisions of Section 123 of the Criminal Procedure Code and Article 49 (1) (h) of the Constitution.
The trial court has discretion to grant bail terms at any stage of the trial. Further, bail is a constitutional right that is only limited where compelling reasons are proved to exist.
The review of an order declining to grant bail is not automatic and must be granted on merit.
The court urged to consider review of bail will consider matters such as
Whether there is change in circumstances or new evidence is submitted by the accused;
Whether the impugned decision contains an error
Whether the decision is clearly inappropriate. See Republic v Kariuki [2023] KEHC 2175 (KLR.
The court in this matter declined to grant bail citing the threat to eye witness which the state was able to establish.
The court considered that had the accused been granted bail, he would have had to go back to Kasabuni where he resided with members of victim’s family who were among the key prosecution witnesses. The key witnesses described the accused as dreaded and known for criminal activities.
The court concluded that granting the accused bond at the time would most likely damage the prosecution’s case as his presence in the community would create fear and cause anxiety to witnesses thus potentially dissuading them from testifying.
So far, the witnesses perceived to be threatened have since testified. The prosecution has not raised any further compelling reasons or new circumstances to justify the denial of bail to the accused.
The predominant consideration in the granting of bail is whether or not the accused person would be able to return to court and continue with his trial. The court must therefore balance the interests of justice against the accused person’s right to bail. The interests of justice must be protected from any possible, discernible or potential compromise.
The court has considered that all the witnesses who were considered as being exposed to danger before they could testify have since given their evidence thus the only issue for consideration now would be, what are the terms that the court should impose that would guarantee his return to court to face trial.
Further detention of the accused would be unjustified and a violation of the fundamental right of the accused to liberty.
In the case of R. VS. JACQUE, 2008 N LTD 184 (CanLII) cited by justice Kasango Republic -Vs- Harun Mburu Nguchu [2021] KEHC 7707 (KLR ) the Canadian court held that it is not justified where detention is merely convenient or advantageous.
In R. V. MORALES, 1992 CanLII 53 (SCC) , [1992] 3 S.C.R. 711 the Supreme Court of Canada gave guidance to trial judges conducting bail reviews. At page 736 Lamer, C.J.C. stated:-At page 737 and stated that ::-
‘’Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a substantial likelihood of committing an offence or interfering with the administration of justice and only where this substantial likelihood endangers the protection or safety of the public. Moreover, detention is justified only when it is necessary for public safety. It is not justified where detention would merely be convenient or advantageous. Such grounds are sufficiently narrow to fulfill the first requirement of just cause under Section 11(e)."
Further, the accused personal circumstances and the fact that he has a family and is the breadwinner are also factors for consideration on bail. However, those reasons and circumstances are secondary to the accused persons guarantee not to abscond.
The court therefore considers that since the witnesses who were exposed have since testified, the accused person may now be admitted to bail on stringent conditions in order to ensure that the interests of justice are not compromised since this matter has already progressed and it would be unfortunate if the same was to collapse at the instance of the accused by failing to show up for his trial in the future.
Accordingly, the accused person shall be admitted to bail on the following terms;
A bond of ksh.1.5 million shillings plus two sureties of a similar amount
The accused person is to remain within the jurisdiction of this country until the matter is heard and determined
The accused person and his sureties shall provide mobile telephone contacts that they shall retain in use until this matter is fully heard and determined
The accused person shall not contact any of the relatives of the deceased and should that become desirable for purposes of attempting resolution of the case through Plea Bargain or any other alternative form of justice, the accused shall instruct his counsel to formally raise the matter with the DPP
The accused person and the surety shall provide details of their permanent abode
The local chief of the area identified as the fixed abode of the accused and the sureties shall issue a letter of confirmation to both which shall be filed in court directly by the chief ,
It is so ordered.
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