1. The Accused person has been charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars are that on 12 th November 2025, at around 1100 hrs within Iveti village, Iveti Location in Kathiani Sub-County within Machakos County, he murdered Jackson Musila Nganga. The Accused denied the charge and the court directed that a Pre-Bail Report be prepared before it can be determined whether he can be released on bail or bond pending the hearing and determination of this case. The Pre-Bail Report has been filed and I have considered the same in this determination.
2. I do not think it is in dispute 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)]
3. 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)]
4. Having gone through the Pre-Bail Report, I note that it consistently paints a picture of an accused person who is in grave danger if released. The area Assistant Chief stated that the matter has elicited "tension and emotions in the community" and that the Accused is "at great risk as per the current mood in the community.” The Report also explicitly states that the Accused's stepsiblings have threatened to revenge the death of their father should the Accused be released. The Investigating Officer confirmed the risk, noting that had the Accused not surrendered himself at the Police Station, he would have been murdered by the angry community members. It is therefore evident to the court that releasing the Accused into this environment would expose him to a very real and immediate threat of mob violence or retaliation, making this a paramount compelling reason for his continued detention for his own safety.
5. I also note that the Pre-Bail Report provides strong evidence that the Accused lacks the necessary support system and stable environment to guarantee his attendance at trial. His family is strongly opposed to the granting of bail and has shown no willingness to bail him out and they prefer that he remains in custody. The Report also concludes that the Accused is not welcome at his ancestral home and has no established residence within the ancestral home and that his intention to reside in Nairobi is clouded by doubt as per his current mental state.
6. The Report also states that his relationship with his family is severely strained, his wife has separated from him and is living elsewhere in Nairobi. I find that this lack of a stable home and family ties significantly undermines the guarantee that he will return to court. I also note that the Accused's family members are effectively the key witnesses and victims' relatives. The Report indicates that his release would endanger them and the family fear that he harbors a lot within which makes him a threat to the family and the community at large.
7. It has also been revealed that the Accused has a documented history of violence against his deceased father, having fractured his hand in a previous confrontation which in my view demonstrates a capacity for violence within the family. The Accused is also reported to have disowned his parents and has a belief that the family land belongs to him. His relationship with his wife was also marked by him chasing her and the children away and it is clear that his release would likely escalate the tension and place his family members in a position of fear for their safety.
8. The court is also aware that the Accused is facing the grave charge of murder. While not a sole reason for denying bail, the gravity of the offence is an important factor and when combined with the clear risk of harm to the Accused and the community, it adds significant weight to the argument for denial. This is not to say that the court has not considered factors in favor of bail, but having reviewed the circumstances in this case, these are outweighed by the compelling reasons above.
9. I have also gone through the Mental Assessment Report which concludes he is fit to plead and that his cognitive status is "adequate to follow court proceedings.” It also confirms he has a "psychopathology" requiring medication. I note that the court in Obado(supra) cited "necessity to procure a medical or social report" as a reason for detention. The Pre-Bail Report explicitly recommends his continued stay in remand to "enable him to seek mediation," which aligns with this principle. His mental state, while stable on medication, is a vulnerability that increases the risks identified above. Further, whereas the Report confirms a clean criminal record, I find that it is not sufficient to outweigh the overwhelming evidence of risk to his person and to the community and/or witnesses.
10. The upshot is that in balancing the rights of the Accused against the interests of justice, the Pre-Bail Report reveals a confluence of compelling reasons that the Accused's personal safety is at immediate risk, he lacks a stable support system to ensure his attendance in court and his release poses a threat to the safety of his family and the wider community. The gravity of the murder charge further underscores these concerns. Therefore, based on the legal principles and the evidence presented, this court finds that the Accused is not suitable for bail/bond as it stands. His continued detention is necessary for his own protection, the safety of the community and to ensure the proper administration of justice. The Accused may seek re-consideration of the issue of his bail at a later stage of the proceedings, in case of changed circumstances. 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. Accused Present at Machakos Main Prison
2. Ms. Machuma for the Prosecution
3. Abdisalan- Court Assistant
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2. I do not think it is in dispute 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)]
3. 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)]
4. Having gone through the Pre-Bail Report, I note that it consistently paints a picture of an accused person who is in grave danger if released. The area Assistant Chief stated that the matter has elicited "tension and emotions in the community" and that the Accused is "at great risk as per the current mood in the community.” The Report also explicitly states that the Accused's stepsiblings have threatened to revenge the death of their father should the Accused be released. The Investigating Officer confirmed the risk, noting that had the Accused not surrendered himself at the Police Station, he would have been murdered by the angry community members. It is therefore evident to the court that releasing the Accused into this environment would expose him to a very real and immediate threat of mob violence or retaliation, making this a paramount compelling reason for his continued detention for his own safety.
5. I also note that the Pre-Bail Report provides strong evidence that the Accused lacks the necessary support system and stable environment to guarantee his attendance at trial. His family is strongly opposed to the granting of bail and has shown no willingness to bail him out and they prefer that he remains in custody. The Report also concludes that the Accused is not welcome at his ancestral home and has no established residence within the ancestral home and that his intention to reside in Nairobi is clouded by doubt as per his current mental state.
6. The Report also states that his relationship with his family is severely strained, his wife has separated from him and is living elsewhere in Nairobi. I find that this lack of a stable home and family ties significantly undermines the guarantee that he will return to court. I also note that the Accused's family members are effectively the key witnesses and victims' relatives. The Report indicates that his release would endanger them and the family fear that he harbors a lot within which makes him a threat to the family and the community at large.
7. It has also been revealed that the Accused has a documented history of violence against his deceased father, having fractured his hand in a previous confrontation which in my view demonstrates a capacity for violence within the family. The Accused is also reported to have disowned his parents and has a belief that the family land belongs to him. His relationship with his wife was also marked by him chasing her and the children away and it is clear that his release would likely escalate the tension and place his family members in a position of fear for their safety.
8. The court is also aware that the Accused is facing the grave charge of murder. While not a sole reason for denying bail, the gravity of the offence is an important factor and when combined with the clear risk of harm to the Accused and the community, it adds significant weight to the argument for denial. This is not to say that the court has not considered factors in favor of bail, but having reviewed the circumstances in this case, these are outweighed by the compelling reasons above.
9. I have also gone through the Mental Assessment Report which concludes he is fit to plead and that his cognitive status is "adequate to follow court proceedings.” It also confirms he has a "psychopathology" requiring medication. I note that the court in Obado(supra) cited "necessity to procure a medical or social report" as a reason for detention. The Pre-Bail Report explicitly recommends his continued stay in remand to "enable him to seek mediation," which aligns with this principle. His mental state, while stable on medication, is a vulnerability that increases the risks identified above. Further, whereas the Report confirms a clean criminal record, I find that it is not sufficient to outweigh the overwhelming evidence of risk to his person and to the community and/or witnesses.
10. The upshot is that in balancing the rights of the Accused against the interests of justice, the Pre-Bail Report reveals a confluence of compelling reasons that the Accused's personal safety is at immediate risk, he lacks a stable support system to ensure his attendance in court and his release poses a threat to the safety of his family and the wider community. The gravity of the murder charge further underscores these concerns. Therefore, based on the legal principles and the evidence presented, this court finds that the Accused is not suitable for bail/bond as it stands. His continued detention is necessary for his own protection, the safety of the community and to ensure the proper administration of justice. The Accused may seek re-consideration of the issue of his bail at a later stage of the proceedings, in case of changed circumstances. 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. Accused Present at Machakos Main Prison
2. Ms. Machuma for the Prosecution
3. Abdisalan- Court Assistant
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