Introduction.
1. The accused are charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 28 th August, 2009 they murdered Simon Ndung’u and Ann Wangari Ndung’u.
2. The accused pleaded not guilty to the charges when they were arraigned in court.
3. The prosecution through the investigation officer opposed the release of the accused persons on bail/bond vide affidavit sworn on 8 th June, 2026.
4. Douglas Guchu Ndung’u a victim also opposed the release of the accused persons on bail/bond vide affidavit sworn on 3 rd June, 2026.
5. The accused persons on their part filed a Notice of Motion dated 8 th June, 2026 and a further affidavit sworn 11 th June, 2026 seeking to be released on bail/bond.
Grounds of Opposition to Bail/Bond.
6. The grounds of opposition to the release of the accused persons are set out in the affidavits of the investigating officer IP Patrick Wachira and Douglas Guchu Ndung’u sworn on 8 th June, 2026 and 3 rd June, 2026 respectively.
7. Generally, the grounds are that the accused persons have threatened the victim’s siblings with death to an extent that they have relocated from the country and sought asylum in Germany.
8. It is further asserted that the reports of the threats have been made to the police vide various OB numbers as exhibited in the annexures to the affidavits.
9. The investigating officer and the victims further aver that the accused persons have trespassed to the victim’s property and destroyed the same and issued death threats to the farmhand. It is alleged that 1 st accused led an arson attack on the victim’s property in furtherance of the threats.
10. It is further alleged that the 1 st accused has used his social media platform to issue threats to Douglas Guchu Ndung’u one of the victim’s children.
11. Further it is stated that there is a pending land case before Thika ELC Court in respect of the land the alleged source of motive in commission of the offence.
12. The investigating officer deposes that the accused persons are likely to interfere and compromise the witnesses who are family members and relatives.
13. The investigating officer further deposes that the offence the accused are facing is a very serious one attracting death penalty and thus the probability of the accused persons absconding is high.
14. For the foregoing reasons, the investigating officer opines that the accused should be denied bail/bond.
Response by the Accused to Opposition to Bail/Bond.
15. The accused persons in response to the opposition of bail/bond have stated that bail/bond is a constitutionally guaranteed right under Article 49 of the Constitution and denial of the same amounts to infringement of the accused persons constitutional rights.
16. It is contended that the alleged threats are from the 1 st accused and not the other accused persons hence there is no reasons why they should not be released on bail/bond. In any case the 1 st accused has denied issuing such threats as alleged and terms the same as lacking in veracity.
17. Further the 1 st accused has denied owning a social media platform account as alleged.
18. On the allegations of destruction and arson on the victim’s properties, the 1 st accused aver that the same is incorrect as the destruction was done by one Joseph Ndung’u a stepbrother to Douglas Guchu Ndung’u out of succession dispute.
19. The accused persons aver that the relocation of victim’s children to Germany is not out of any threats but in search for greener pastures.
20. The accused persons further aver that the alleged offence took place way back in 2009 and none of the accused persons has left the jurisdiction of the court and they have cooperated with the investigators all through.
21. The accused have denied being parties to the ELC case filed in Thika. Therefore, that cannot be a reason for denial of bail/bond.
22. The accused persons contend that no compelling reasons have been demonstrated for them to be denied bail/bond. They are not a flight risk, they have a fixed place of abode and they are ready and willing to abide by any conditions that the court may impose including those who have passport to deposit them in court.
Analysis and Determination.
23. The victims and the accused persons filed written submissions. The victims’ submissions are dated 23 rd June, 2026 whereas the accused persons submissions are dated 30 th June, 2026. I have carefully read through and considered the said submissions together with the case law cited.
24. There is no dispute that an accused person has a right to be released on bail/bond pending trial. This is a constitutional right granted under Article 49(1)(g) and (h) of the Constitution. This right can only be denied where there are compelling reasons.
25. Section 123 of the Criminal Procedure Code further dictates that an accused person shall be released on bail/bond unless the court is satisfied of the circumstances set out therein to wit; the nature and seriousness of the offence, the character, antecedent, association and community ties of the accused person, the defendant’s record in respect of the fulfilment of obligations under previous grants of bail, and the strength of the evidence of his having committed the offence.
26. Further there are Bail and Bond Guidelines formulated to guide the court on administration of bail and bond. These guidelines were considered in the case of Republic vs Richard David Allen (2016) e KLR where the Court stated:
“The Bail and Bond Guidelines were formulated specifically to guide the police and judicial officers in the administration of bail and bond. The guidelines set out what the courts should bear in mind when considering an application for bail. They are similar to those set out under 123A of the Criminal Procedure Code. These general considerations are the nature of the offence; strength of the prosecution case; the character of failure of the accused to observe previous bail and bond terms; witnesses interference, protection of the victim; the relationship between the accused and the potential witnesses; whether the accused is a child offender, whether the accused is a flight risk; if the accused is gainfully employed, public order; peace and security and whether there is need for the protection of the accused person.”
27. Guided by the foregoing and having considered all the material placed before the court, the issue for consideration is whether there are compelling reasons not to grant the accused persons bail/bond pending trial.
28. What are compelling reasons, has been subject of courts interpretation in various judicial decisions to be cogent and weighty, not flimsy or based on suspicion. In the case of Patius Gichobi Njagi vs Republic (2013) e KLR the Court of Appeal aptly stated:
“…where the state opposes bail on account of any of the often-cited and commonly known fears which it routinely expresses including but not limited to the likelihood of the accused absconding and failing to attend trial; likelihood of interfering with witnesses; the possibility of hostile and even violent reception of the accused by the community upon release, the state must do more. It must step out of the realm of imagination and speculation and provide the court with persuasive argument backed by facts and experiences and circumstances unique to each individual case that would make the court appreciate the need to deny an applicant bail. As stated in the celebrated case of Jaffer vs Republic (1973) E.A 39 the court cannot be called upon to speculate.”
29. From the foregoing the burden of prove of compelling reasons squarely lies with the prosecution.
30. In the instant case the grounds fronted by the prosecution is that the accused persons have threatened the victims and they are likely to interfere with the witnesses. It however emerged that the alleged offence was committed in 2009. The same was subject of inquest. All that time there was no complain of the accused interfering with the witnesses.
31. Further it has also emerged that most of the victims of the offence are residing outside the country and likelihood of interference or threats in the circumstances is remote.
32. Further the reasons advanced by the prosecution to deny the accused persons bail/bond looked at against the favourable pre-bail reports on the accused persons suitability for bond and assuming the possibility of the accused interference, outweighs the prosecution argument that the accused should be denied bond.
33. In the circumstances I am not persuaded by the argument by the prosecution that there are compelling reasons to deny the accused persons’ bail/bond.
34. Consequently, I do hereby grant the accused bail/bond on the following terms:
1. Each of the accused persons herein namely Robert Mungai Kariuki, James Waweru Mungai, Gerald Mutonga and Robert Hiri Kinuthia are hereby admitted to bail/bond of Kshs. 1,000,000/= with one surety of similar amount.
2. The accused persons are warned against interference with the victims or the witnesses pending the trial of this case in default the bail/bond terms may stand cancelled.
3. That any of the accused who is in possession of passport do deposit the same in court pending trial or otherwise vide orders of this court.
4. The investigating officer to conduct investigations on who among the accused has a passport.
Orders accordingly.
Dated, signed and delivered at Kiambu this 3 rd day of August, 2026
Francis Kyambia
Judge of the High Court.
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1. The accused are charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 28 th August, 2009 they murdered Simon Ndung’u and Ann Wangari Ndung’u.
2. The accused pleaded not guilty to the charges when they were arraigned in court.
3. The prosecution through the investigation officer opposed the release of the accused persons on bail/bond vide affidavit sworn on 8 th June, 2026.
4. Douglas Guchu Ndung’u a victim also opposed the release of the accused persons on bail/bond vide affidavit sworn on 3 rd June, 2026.
5. The accused persons on their part filed a Notice of Motion dated 8 th June, 2026 and a further affidavit sworn 11 th June, 2026 seeking to be released on bail/bond.
Grounds of Opposition to Bail/Bond.
6. The grounds of opposition to the release of the accused persons are set out in the affidavits of the investigating officer IP Patrick Wachira and Douglas Guchu Ndung’u sworn on 8 th June, 2026 and 3 rd June, 2026 respectively.
7. Generally, the grounds are that the accused persons have threatened the victim’s siblings with death to an extent that they have relocated from the country and sought asylum in Germany.
8. It is further asserted that the reports of the threats have been made to the police vide various OB numbers as exhibited in the annexures to the affidavits.
9. The investigating officer and the victims further aver that the accused persons have trespassed to the victim’s property and destroyed the same and issued death threats to the farmhand. It is alleged that 1 st accused led an arson attack on the victim’s property in furtherance of the threats.
10. It is further alleged that the 1 st accused has used his social media platform to issue threats to Douglas Guchu Ndung’u one of the victim’s children.
11. Further it is stated that there is a pending land case before Thika ELC Court in respect of the land the alleged source of motive in commission of the offence.
12. The investigating officer deposes that the accused persons are likely to interfere and compromise the witnesses who are family members and relatives.
13. The investigating officer further deposes that the offence the accused are facing is a very serious one attracting death penalty and thus the probability of the accused persons absconding is high.
14. For the foregoing reasons, the investigating officer opines that the accused should be denied bail/bond.
Response by the Accused to Opposition to Bail/Bond.
15. The accused persons in response to the opposition of bail/bond have stated that bail/bond is a constitutionally guaranteed right under Article 49 of the Constitution and denial of the same amounts to infringement of the accused persons constitutional rights.
16. It is contended that the alleged threats are from the 1 st accused and not the other accused persons hence there is no reasons why they should not be released on bail/bond. In any case the 1 st accused has denied issuing such threats as alleged and terms the same as lacking in veracity.
17. Further the 1 st accused has denied owning a social media platform account as alleged.
18. On the allegations of destruction and arson on the victim’s properties, the 1 st accused aver that the same is incorrect as the destruction was done by one Joseph Ndung’u a stepbrother to Douglas Guchu Ndung’u out of succession dispute.
19. The accused persons aver that the relocation of victim’s children to Germany is not out of any threats but in search for greener pastures.
20. The accused persons further aver that the alleged offence took place way back in 2009 and none of the accused persons has left the jurisdiction of the court and they have cooperated with the investigators all through.
21. The accused have denied being parties to the ELC case filed in Thika. Therefore, that cannot be a reason for denial of bail/bond.
22. The accused persons contend that no compelling reasons have been demonstrated for them to be denied bail/bond. They are not a flight risk, they have a fixed place of abode and they are ready and willing to abide by any conditions that the court may impose including those who have passport to deposit them in court.
Analysis and Determination.
23. The victims and the accused persons filed written submissions. The victims’ submissions are dated 23 rd June, 2026 whereas the accused persons submissions are dated 30 th June, 2026. I have carefully read through and considered the said submissions together with the case law cited.
24. There is no dispute that an accused person has a right to be released on bail/bond pending trial. This is a constitutional right granted under Article 49(1)(g) and (h) of the Constitution. This right can only be denied where there are compelling reasons.
25. Section 123 of the Criminal Procedure Code further dictates that an accused person shall be released on bail/bond unless the court is satisfied of the circumstances set out therein to wit; the nature and seriousness of the offence, the character, antecedent, association and community ties of the accused person, the defendant’s record in respect of the fulfilment of obligations under previous grants of bail, and the strength of the evidence of his having committed the offence.
26. Further there are Bail and Bond Guidelines formulated to guide the court on administration of bail and bond. These guidelines were considered in the case of Republic vs Richard David Allen (2016) e KLR where the Court stated:
“The Bail and Bond Guidelines were formulated specifically to guide the police and judicial officers in the administration of bail and bond. The guidelines set out what the courts should bear in mind when considering an application for bail. They are similar to those set out under 123A of the Criminal Procedure Code. These general considerations are the nature of the offence; strength of the prosecution case; the character of failure of the accused to observe previous bail and bond terms; witnesses interference, protection of the victim; the relationship between the accused and the potential witnesses; whether the accused is a child offender, whether the accused is a flight risk; if the accused is gainfully employed, public order; peace and security and whether there is need for the protection of the accused person.”
27. Guided by the foregoing and having considered all the material placed before the court, the issue for consideration is whether there are compelling reasons not to grant the accused persons bail/bond pending trial.
28. What are compelling reasons, has been subject of courts interpretation in various judicial decisions to be cogent and weighty, not flimsy or based on suspicion. In the case of Patius Gichobi Njagi vs Republic (2013) e KLR the Court of Appeal aptly stated:
“…where the state opposes bail on account of any of the often-cited and commonly known fears which it routinely expresses including but not limited to the likelihood of the accused absconding and failing to attend trial; likelihood of interfering with witnesses; the possibility of hostile and even violent reception of the accused by the community upon release, the state must do more. It must step out of the realm of imagination and speculation and provide the court with persuasive argument backed by facts and experiences and circumstances unique to each individual case that would make the court appreciate the need to deny an applicant bail. As stated in the celebrated case of Jaffer vs Republic (1973) E.A 39 the court cannot be called upon to speculate.”
29. From the foregoing the burden of prove of compelling reasons squarely lies with the prosecution.
30. In the instant case the grounds fronted by the prosecution is that the accused persons have threatened the victims and they are likely to interfere with the witnesses. It however emerged that the alleged offence was committed in 2009. The same was subject of inquest. All that time there was no complain of the accused interfering with the witnesses.
31. Further it has also emerged that most of the victims of the offence are residing outside the country and likelihood of interference or threats in the circumstances is remote.
32. Further the reasons advanced by the prosecution to deny the accused persons bail/bond looked at against the favourable pre-bail reports on the accused persons suitability for bond and assuming the possibility of the accused interference, outweighs the prosecution argument that the accused should be denied bond.
33. In the circumstances I am not persuaded by the argument by the prosecution that there are compelling reasons to deny the accused persons’ bail/bond.
34. Consequently, I do hereby grant the accused bail/bond on the following terms:
1. Each of the accused persons herein namely Robert Mungai Kariuki, James Waweru Mungai, Gerald Mutonga and Robert Hiri Kinuthia are hereby admitted to bail/bond of Kshs. 1,000,000/= with one surety of similar amount.
2. The accused persons are warned against interference with the victims or the witnesses pending the trial of this case in default the bail/bond terms may stand cancelled.
3. That any of the accused who is in possession of passport do deposit the same in court pending trial or otherwise vide orders of this court.
4. The investigating officer to conduct investigations on who among the accused has a passport.
Orders accordingly.
Dated, signed and delivered at Kiambu this 3 rd day of August, 2026
Francis Kyambia
Judge of the High Court.
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