'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. E017 OF 2025
1. PATRICK NGUNZU MUTETI
2. FRANCIS BERNARD KAIMI..........................APPLICANTS/ACCUSED
VERSUS
REPUBLIC ......................................................................RESPONDENT
RULING
1. The two Applicants/Accused persons herein Patrick Ngunzu Muteti and Francis Benard Kaimi were charged in this court on 29.7.2025 with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the n18th days of April 2025 at Kavilia Village, Ndithini Location, Masinga Sub-County within the Machakos County, jointly with others not before the court murdered Zachary Kariuki Gichuki.
2. The two denied the charges and pleas of not guilty were entered.
3. The two accused persons through their Counsel Mr. Mwale orally applied to be released on bail/bond under the provisions of Article 49 (1)(h) and 50 (2) (a) of the New Constitution , 2010which provides that:-
“49 1 (h)
- An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released.”
50 (2) (1)
-Every accused person has the right to a fair trial which includes the right –
(a) to be presumed innocent until the contrary is proven”
4. These Constitutional provisions came into force after the promulgation of the New Constitution, 2010. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is Death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence e.g. murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.
5. The High court is therefore given the discretion and jurisdiction to consider whether there are any compelling reasons for an accused person in a murder case to be denied his Constitutional right to be released on bail.
6. I have considered the oral application by the counsel for the two accused persons for admission to bail/bond and the reasons given by the Prosecution and the Complainant’s Counsel and his witnesses against the release of the two accused persons.
7. I have also considered the rival written submissions filed by the Parties’ Advocates and the respective Pre-bail reports filed by the Probation Office.
8. It is my considered view that at the first instance, once an accused person applies for bail in a murder case, the same principles and considerations in bail applications in respect of any other offence shall be applicable. The primary consideration is whether the accused person shall attend court and be available at the trial. All factors and circumstances for the release will be centred on this question. Any other factor will be secondary. In the case of WATORO V REPUBLIC (1991) KLR 220 at 283, Porter,J stated:-
“… I think I have made it clear over a number of rulings in bail application that I take the view on authority that the paramount consideration in bail application is whether the Accused will turn up for his trial ……….”
9. I agree with the said view. So, is it enough for the accused to state that since he is presumed to be innocent until proven guilty, he is entitled to bail and he assures the court and undertakes that he will be in attendance at the trial. I think that having stated the Constitutional right to bail and cited the provision which underpins it, there can be no debate on the protection of the said right. It is true that the accused persons may be citizens or otherwise and are innocent until proven guilty.
10. However, the State Counsel and the Complaint’s Counsel have told the court to consider the following:-
i. that the accused were still threatening to kill the complainant and his workers/agents.
ii. that the accused would interfere with the other suspects at large and were being sort for arrest.
iii. that the accused had completely denied the complainant and his agents’ entry into his land.
iv. that the accused had also been charged at this court with another offence of murder vide case HCCR no. 06/2026 death which occurred in the same land
Ndithini/Mananja block 7/38 which is in dispute.
v. that the dispute of the said land is active and has resulted to violent activities resulting to murder, grievous harm and arson that the accused are accused of.
vi. that the accused have interfered with witnesses causing them to flee from the area due to fear of being attacked by the accused.
vii. that the Respondents’ have caused insecurity to the complainant and owner of the land.
viii. that the said accused are to be charged with another offence of murder at this court.
11. They also argue that there is still tension in the area as there is interference with entry to access the property and that it is for their own interest that they should remain in remand.
12. Counsel for the accused did not agree with the said views and argued that there was no evidence to back the allegations of intention to destroy evidence or interfere with witnesses. That the accused persons are not scared to go back to safer places if released on bond as they are innocent and nobody has threatened them. That there are no compelling and/or exceptional circumstances to warrant the accused persons to be denied their constitutional right to bail/bond.
13. From the foregoing and on authority, I form the view that there are many possible factors and circumstances which can affect the availability of the accused person in a murder case at the trial. Murder is a serious offence and attracts the death penalty. Self preservation is a natural reaction or response of any human being.
14. Whatever the court will decide, the fear and anxiety exerting on an accused’s mind during the trial in a murder case cannot be ignored. The possibility of thinking of flight risk by an accused person facing a capital offence is real and cannot be wished away. It is therefore true that the seriousness of an offence and the sentence for which is possible upon conviction is a matter which can bear on the accused and can affect his decision to attend trial or not. Porter J in the above case put it so succinctly, he said:-
“………………The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody ……
What I think is important for the court to bear in mind, and the reason for the caution to remember the presumption of innocence, is that it would be wrong to leap to the conclusion that the Accused was guilty merely because he had been charged and decide the bail application on that basis.
Nevertheless, the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question: it has happened before, and in similar cases.
I do not mean to say that because other people have decided to leave business family and friends, for other climes, rather than to face prosecution, this applicant will do so, that decision depends on all prevailing circumstances of the applicant. All I mean to say is that the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction…”
15. I am persuaded by the aforesaid reasoning and observations. I do not think that it was in necessary for the Republic and the Complainant to file affidavits to prove or substantiate such fears or apprehensions. Of course, I would overrule any suggestions of possible interference with witnesses and evidence unless there is some tangible or at least some prima facie material that the accused persons had attempted to do this or likely to do so by some known incident or specific conduct/demeanor.
16. Counsel for accused submitted that the accused persons are wiling and ready to abide by any terms the court will impose on them. They desire that the case can be heard expeditiously so that they can prove their innocence. The accused are law abiding citizens and are married men with wives and children. They are not a flight risk and not persons of influence in the society. They are only farmers who are not capable of interfering with witnesses. It was argued that if there is any witness who requires protection, the prosecution can forward the concern with the Witness Protection Agency. The accused have been in custody since their arrest and have therefore not had contact with witnesses even through their families or friends. Counsel stated that he had warned the accused persons not to contact witnesses. Their families or friends if they are admitted and released on bail/bond terms.
17. The present accused persons have told the court :-
- what they do for a living
- marital status
- they have children
- they are Kenyan citizens
- references from their Church,
- Leadership in Charismatic Catholic Church which makes them dependable.
18. All the above information is contained in accused persons’ respective the Pre-bail reports presented in court.
19. The penalty of murder is death as per the Penal Code. In the circumstances the severity of the sentence may tempt the accused persons to abscond if released on bail.
20. I have carefully analysed the arguments advanced for and against the grant of bail and/or bond in this case.
21. I have taken judicial notice of the fact that in the modern society the incidence of crime has increased and the criminals brought to court are so many that every criminal case brought before the court takes quite some time before the actual trial commences. In all such cases, the court may ensure the presence of the accused person at some future date in one or two ways – by placing him in custody or by releasing him on bail or bond as the case may be.
22. The purpose of bail is to ensure the attendance of the accused at his trial and not to seek to evade justice. The amount of bail will vary according to the circumstances and the nature of the offence, the possible punishment and the station or position in life of the accused. It should not be no more that will probably secure the attendance of the accused, and should never be so large as to amount to a denial of bail. Each case should be treated on its peculiar merit. The guideline is the evidence.
23. Then there are minor considerations to be taken into account, such as:-
(i) The nature and severance of the offence;
(ii) The severity of the punishment involved;
(iii) The strength of the evidence in support of the charge;
(iv) Whether there exist some compelling reasons for refusing bail or bond.
24. Put in another way, if the presumption of innocence is to have any meaning at all then at this stage, an accused person should not be deprived of his liberty save in exceptional circumstances. Balancing and considering all the facts and circumstances of this case and bearing in mind the Applicants’ Constitutional right to bail and their respective presumption of innocence, I am convinced that the two accused here have given the court sufficient comfort and assurance that they will be available and attend court from time to time and for the trial.
25. Last but not least, it must always be remembered that the grant of bail is not automatic. It is always at the discretion of the court. It is incumbent upon the court to weigh the available evidence for and against the grant of bail.
26. In the peculiar circumstances of this case the evidence embodied in the affidavits sworn by the accused persons appear to me to be weightier than the affidavit evidence in opposition to the application for bond/bail.
27. There is evidence that the accused persons’ homes have been demolished and that it is unlikely they will be going back to reside on the disputed land as they have no homes in place.
28. The investigations are deemed complete when the decision to charge the accused persons was made although further investigations may be done. In those circumstances, there is no danger that the accused persons will interfere with investigations. If they do the prosecution will be at liberty to make an application for the cancellation of their bail and/or bond.
29. In the result, I am inclined to admit the accused persons to bond on the following conditions.
a) Each accused person is admitted to a bond of Kenya Shillings Six Hundred Thousand (Kshs.600,000/=) with one surety of like sum.
b) The accused persons are to report to the OCS Masinga Police Station every alternate Monday of every month until the case is heard and determined.
c) The accused persons shall not access, enter onto or go near the disputed land herein pending further orders of this court.
d) The accused persons shall undertake not to make any contacts; whether directly or otherwise with any of the witnesses to be summoned by the prosecution.
e) The accused persons shall not leave the jurisdiction of this court without prior order of this court.
f) The accused persons shall attend all court sessions when and if so required.
30. The above bond terms only apply to the accused persons herein in as far as they are charged in this case.
31. Orders accordingly.
RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 25TH NOVEMBER 2025.
NOEL I. ADAGI
JUDGE
DELIVERED AT MACHAKOS THIS 25TH NOVEMBER 2025
In the presence of:
'
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. E017 OF 2025
1. PATRICK NGUNZU MUTETI
2. FRANCIS BERNARD KAIMI..........................APPLICANTS/ACCUSED
VERSUS
REPUBLIC ......................................................................RESPONDENT
RULING
1. The two Applicants/Accused persons herein Patrick Ngunzu Muteti and Francis Benard Kaimi were charged in this court on 29.7.2025 with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the n18th days of April 2025 at Kavilia Village, Ndithini Location, Masinga Sub-County within the Machakos County, jointly with others not before the court murdered Zachary Kariuki Gichuki.
2. The two denied the charges and pleas of not guilty were entered.
3. The two accused persons through their Counsel Mr. Mwale orally applied to be released on bail/bond under the provisions of Article 49 (1)(h) and 50 (2) (a) of the New Constitution , 2010which provides that:-
“49 1 (h)
- An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released.”
50 (2) (1)
-Every accused person has the right to a fair trial which includes the right –
(a) to be presumed innocent until the contrary is proven”
4. These Constitutional provisions came into force after the promulgation of the New Constitution, 2010. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is Death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence e.g. murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.
5. The High court is therefore given the discretion and jurisdiction to consider whether there are any compelling reasons for an accused person in a murder case to be denied his Constitutional right to be released on bail.
6. I have considered the oral application by the counsel for the two accused persons for admission to bail/bond and the reasons given by the Prosecution and the Complainant’s Counsel and his witnesses against the release of the two accused persons.
7. I have also considered the rival written submissions filed by the Parties’ Advocates and the respective Pre-bail reports filed by the Probation Office.
8. It is my considered view that at the first instance, once an accused person applies for bail in a murder case, the same principles and considerations in bail applications in respect of any other offence shall be applicable. The primary consideration is whether the accused person shall attend court and be available at the trial. All factors and circumstances for the release will be centred on this question. Any other factor will be secondary. In the case of WATORO V REPUBLIC (1991) KLR 220 at 283, Porter,J stated:-
“… I think I have made it clear over a number of rulings in bail application that I take the view on authority that the paramount consideration in bail application is whether the Accused will turn up for his trial ……….”
9. I agree with the said view. So, is it enough for the accused to state that since he is presumed to be innocent until proven guilty, he is entitled to bail and he assures the court and undertakes that he will be in attendance at the trial. I think that having stated the Constitutional right to bail and cited the provision which underpins it, there can be no debate on the protection of the said right. It is true that the accused persons may be citizens or otherwise and are innocent until proven guilty.
10. However, the State Counsel and the Complaint’s Counsel have told the court to consider the following:-
i. that the accused were still threatening to kill the complainant and his workers/agents.
ii. that the accused would interfere with the other suspects at large and were being sort for arrest.
iii. that the accused had completely denied the complainant and his agents’ entry into his land.
iv. that the accused had also been charged at this court with another offence of murder vide case HCCR no. 06/2026 death which occurred in the same land
Ndithini/Mananja block 7/38 which is in dispute.
v. that the dispute of the said land is active and has resulted to violent activities resulting to murder, grievous harm and arson that the accused are accused of.
vi. that the accused have interfered with witnesses causing them to flee from the area due to fear of being attacked by the accused.
vii. that the Respondents’ have caused insecurity to the complainant and owner of the land.
viii. that the said accused are to be charged with another offence of murder at this court.
11. They also argue that there is still tension in the area as there is interference with entry to access the property and that it is for their own interest that they should remain in remand.
12. Counsel for the accused did not agree with the said views and argued that there was no evidence to back the allegations of intention to destroy evidence or interfere with witnesses. That the accused persons are not scared to go back to safer places if released on bond as they are innocent and nobody has threatened them. That there are no compelling and/or exceptional circumstances to warrant the accused persons to be denied their constitutional right to bail/bond.
13. From the foregoing and on authority, I form the view that there are many possible factors and circumstances which can affect the availability of the accused person in a murder case at the trial. Murder is a serious offence and attracts the death penalty. Self preservation is a natural reaction or response of any human being.
14. Whatever the court will decide, the fear and anxiety exerting on an accused’s mind during the trial in a murder case cannot be ignored. The possibility of thinking of flight risk by an accused person facing a capital offence is real and cannot be wished away. It is therefore true that the seriousness of an offence and the sentence for which is possible upon conviction is a matter which can bear on the accused and can affect his decision to attend trial or not. Porter J in the above case put it so succinctly, he said:-
“………………The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody ……
What I think is important for the court to bear in mind, and the reason for the caution to remember the presumption of innocence, is that it would be wrong to leap to the conclusion that the Accused was guilty merely because he had been charged and decide the bail application on that basis.
Nevertheless, the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question: it has happened before, and in similar cases.
I do not mean to say that because other people have decided to leave business family and friends, for other climes, rather than to face prosecution, this applicant will do so, that decision depends on all prevailing circumstances of the applicant. All I mean to say is that the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction…”
15. I am persuaded by the aforesaid reasoning and observations. I do not think that it was in necessary for the Republic and the Complainant to file affidavits to prove or substantiate such fears or apprehensions. Of course, I would overrule any suggestions of possible interference with witnesses and evidence unless there is some tangible or at least some prima facie material that the accused persons had attempted to do this or likely to do so by some known incident or specific conduct/demeanor.
16. Counsel for accused submitted that the accused persons are wiling and ready to abide by any terms the court will impose on them. They desire that the case can be heard expeditiously so that they can prove their innocence. The accused are law abiding citizens and are married men with wives and children. They are not a flight risk and not persons of influence in the society. They are only farmers who are not capable of interfering with witnesses. It was argued that if there is any witness who requires protection, the prosecution can forward the concern with the Witness Protection Agency. The accused have been in custody since their arrest and have therefore not had contact with witnesses even through their families or friends. Counsel stated that he had warned the accused persons not to contact witnesses. Their families or friends if they are admitted and released on bail/bond terms.
17. The present accused persons have told the court :-
- what they do for a living
- marital status
- they have children
- they are Kenyan citizens
- references from their Church,
- Leadership in Charismatic Catholic Church which makes them dependable.
18. All the above information is contained in accused persons’ respective the Pre-bail reports presented in court.
19. The penalty of murder is death as per the Penal Code. In the circumstances the severity of the sentence may tempt the accused persons to abscond if released on bail.
20. I have carefully analysed the arguments advanced for and against the grant of bail and/or bond in this case.
21. I have taken judicial notice of the fact that in the modern society the incidence of crime has increased and the criminals brought to court are so many that every criminal case brought before the court takes quite some time before the actual trial commences. In all such cases, the court may ensure the presence of the accused person at some future date in one or two ways – by placing him in custody or by releasing him on bail or bond as the case may be.
22. The purpose of bail is to ensure the attendance of the accused at his trial and not to seek to evade justice. The amount of bail will vary according to the circumstances and the nature of the offence, the possible punishment and the station or position in life of the accused. It should not be no more that will probably secure the attendance of the accused, and should never be so large as to amount to a denial of bail. Each case should be treated on its peculiar merit. The guideline is the evidence.
23. Then there are minor considerations to be taken into account, such as:-
(i) The nature and severance of the offence;
(ii) The severity of the punishment involved;
(iii) The strength of the evidence in support of the charge;
(iv) Whether there exist some compelling reasons for refusing bail or bond.
24. Put in another way, if the presumption of innocence is to have any meaning at all then at this stage, an accused person should not be deprived of his liberty save in exceptional circumstances. Balancing and considering all the facts and circumstances of this case and bearing in mind the Applicants’ Constitutional right to bail and their respective presumption of innocence, I am convinced that the two accused here have given the court sufficient comfort and assurance that they will be available and attend court from time to time and for the trial.
25. Last but not least, it must always be remembered that the grant of bail is not automatic. It is always at the discretion of the court. It is incumbent upon the court to weigh the available evidence for and against the grant of bail.
26. In the peculiar circumstances of this case the evidence embodied in the affidavits sworn by the accused persons appear to me to be weightier than the affidavit evidence in opposition to the application for bond/bail.
27. There is evidence that the accused persons’ homes have been demolished and that it is unlikely they will be going back to reside on the disputed land as they have no homes in place.
28. The investigations are deemed complete when the decision to charge the accused persons was made although further investigations may be done. In those circumstances, there is no danger that the accused persons will interfere with investigations. If they do the prosecution will be at liberty to make an application for the cancellation of their bail and/or bond.
29. In the result, I am inclined to admit the accused persons to bond on the following conditions.
a) Each accused person is admitted to a bond of Kenya Shillings Six Hundred Thousand (Kshs.600,000/=) with one surety of like sum.
b) The accused persons are to report to the OCS Masinga Police Station every alternate Monday of every month until the case is heard and determined.
c) The accused persons shall not access, enter onto or go near the disputed land herein pending further orders of this court.
d) The accused persons shall undertake not to make any contacts; whether directly or otherwise with any of the witnesses to be summoned by the prosecution.
e) The accused persons shall not leave the jurisdiction of this court without prior order of this court.
f) The accused persons shall attend all court sessions when and if so required.
30. The above bond terms only apply to the accused persons herein in as far as they are charged in this case.
31. Orders accordingly.
RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 25TH NOVEMBER 2025.
NOEL I. ADAGI
JUDGE
DELIVERED AT MACHAKOS THIS 25TH NOVEMBER 2025
In the presence of:
'