INFORMATION
1. The Accused Person KLinzy Baraza Masinde is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap.63 Laws of Kenya.
Particulars of the offence being that on the 17 th June 2025 outside Imenti House Nairobi Central Business District within Nairobi County he murdered Boniface Kariuki Mwangi.
2. The Mental Assessment report declared the Accused person as FIT TO PLEAD.
3. The Trial Court had the Charge /Information read to the Accused person and he pleaded NOT GUILTY.
NOTICE OF MOTION
2. On 15 th August 2025 the Accused person filed a Notice of Motion seeking the following orders:-
1) THAT Court be pleased to certify this application as urgent and fit to be heard on priority basis.
2) THAT service of this application be dispensed with in the first instance
3) THAT the court be pleased to release the Applicant on reasonable bond or cash bail terms, pending the trial of the Applicant in the above Criminal Case
4) THAT the court do make any other order it deems fit in the circumstances.
3. GROUNDS OF APPLICATION FOR ORDERS
1. That the Applicant is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code to which offence he pleaded not guilty.
2. The said offence is bailable and hence the Applicant is entitled to be released on reasonable bail/bond as of right pending the bearing and determination of the case.
3. That the Applicant was the bread winner of his young family catering for all the basics for his two children and wife together with his sickly and old mother and for the period he has been in custody, his family has been living from hand to mouth which is threatening the disintegration of his family which will negatively impact most on the children and the sick and old mother.
4. That the Applicant is a father of two young children who are school going children of tender years who have been in and out of school due to lack of finances and the wife who does not have any form of employment and was dependent on him has been unable to feed and provide for their education singlehandedly.
5. That his sickly and old mother and who requires urgently and timely medical attention has and continues to suffer as a result of the applicant detention, the applicant having been his main source of help.
6. The applicant who has been charged in the aforesaid Criminal Case, is Constitutionally entitled under Article 49 (1) (h) of the Constitution of Kenya to be released on bond or bail, on reasonable conditions, pending trial and there are no compelling or irresistible reasons why he should be denied bail as required by Article 49(1) (h) of the Constitution of Kenya.
7. That under Article 50 (2) of the Constitution of Kenya, an accused person and in this case, the Applicant has a right to be presumed innocent until the contrary is proved.
8. That this Court has the judicial discretion to ensure that the applicant's right to liberty and fair trial is protected pending trial by granting him bail.
9. The Applicant the applicant is ready, able and willing to shade by any bond or bail terms and conditions that may be imposed by Court
10. The applicant will not abscond and will attend all the
proceedings whenever and wherever required.
11. That the applicant has a fixed place of abode in Kayole and also at Bungoma all within the Republic of Kenya.
12. That the applicant is not a flight risk.
13. That the applicant will not interfere with witnesses in the case.
14. That the applicant will not endanger the safety of the
public.
15. This application is bona fide , well merited, well founded and is made in the interest of justice and it would be fair and just to grant the orders sought.
16. THAT no loss or prejudice will be suffered by the Respondent if the orders sought herein above are granted.
17. That unless bail is granted, the Accused person's
children's lives and that of his mother will be utterly destroyed and justice will not be seen to have been done if it can destroy the lives of the two young children and his entire dependent family.
4. SUPPORTING AFFIDAVIT OF KLINZY BARASA
MASINDE
1. On 15 th September 2025 the accused person filed a supporting affidavit and stated as follows:
2. THAT he was informed by his advocate, VK YEGON and
ABDIRAZAK MOHAMED , that all offences are bailable including serious offences as murder and that he is therefore entitled to be granted reasonable bail or bond as a matter of constitutional right and pray that the court grant him the same.
3. THAT through his lawyer he made this application for bail pending trial of the aforementioned case and reiterated the particulars and details outlined in the Grounds For the Application and Orders outlined above.
5. ACCUSED’S PERSON ‘S REPLYING AFFIDAVIT IN
OPPOSITION OF BAIL
1. THAT the averments contained as from paragraph 2-6 of the Affidavit to oppose Bond/bail are admitted as far as it is mere descriptive of the events leading to this case and the statutory investigative role /powers of the independent Policing Oversight Authority (IPOA)
2. THAT am informed by my Advocates of record which information I believe to be true that the right to boil/bond is not absolute and where there are compelling reasons, the said right may be restricted. Nevertheless, the constitution expressly confers the said right and it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.
3. THAT I am equally informed by my Advocates on record which information I believe to be true that Article 49 of the Constitution of Kenya 2010 articulates the rights of the arrested persons and more so. Article 49(1)(h) categorically stipulates that an arrested person has a right to be released on ball or bond, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
4. THAT the compelling reasons which might deny an accused person to be granted to bail and/or bond include, the Accused; being capable of failing to attend court, endanger the safety of victims, individuals, or the public. Interfere with witnesses or evidence, endanger national security or public safety, flight risk, serial offender, fleeing from Court's jurisdiction amongst other reasons.
5. In the case of Republic vs Joktan Mayende & 4 Others (2012) eKLR, the Court stated that, “the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Ball should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.
6. In the case of Republic V Danford Kabage Mwangi (2016) eKLR. the court while defining what amounts to compelling reasons stated that ".....compelling reasons grounds ought to be proved to the satisfaction of the Court, mere allegations or possibility is not enough. Bail cannot be refused simply because the accused has been charged with a very serious offence."
7. In the case of Republic V Muneer Harron Ismael & 4 others, HC Criminal Revision case NO. 51 OF 2009 . Hon Warsame J (as he then was) stated that...
" in deciding whether or not to grant bail, the basic factor or denominator is to secure the attendance of the accused person to answer the charges brought against him..."
8. THAT the contents contained in paragraph 17 and 18 of the Affidavit to oppose bond being granted to me are vehemently denied, I am advised by my advocates on record which advice I believe to be true that the idea that I should not be granted bail or bond for my own safety, security and good goes against my constitutional rights and that the court in Republic v Philip Anyanya, 2010 eKLR when faced with similar arguments stated that
"....I also reject the idea that the accused person should be remanded and not granted bail for their own safety, security and good. Any accused person released on bail has his constitutional rights secured and protected. No member of the public or any other person can try and punish him. This can only be done by a competent court with appropriate jurisdiction. The practice by sections of Kenyans society to kill or murder innocent persons only on mere suspicion or even upon a citizen's arrest of suspects for various perceived offences including practicing witchcraft by mob lynching torching etc in the so called "mob justice" is deplorable, criminal, unlawful. illegal and unconstitutional as a result, it would amount to a judicial aiding and abetting of this criminal trend of public murders or so called "mob justice" for the court to purport to deny bail to the accused so as to protect them from being lynched by members of the public.."
9. THAT the contents contained in paragraph 19 of the Affidavit to oppose bond being granted to me are vehemently denied. he has been advised by my advocates on record which advice I believe to be true that at this stage, the court cannot form an opinion on the direction the prosecution case may take as the court has not heard any of the witnesses and/or evidence and therefore the prosecution's fears are premature and that while flight risk is a legitimate concern, conditions can be set to mitigate the risk without resorting to pre-trial dentation which offends his constitutional rights to liberty and fair trial.
10. THAT further to the above, I'm well aware that since the early 1980's. nobody in Kenya has ever been hanged even though many have been sentenced to death and therefore the fears of the state over the possible sentencing and particularly the deaths sentence is misplaced and I genuinely believe that the charges against me will be discharge in the long run.
11. In Godfrey Ngotho Mutiso Vs Republic (Msa) Criminal Appeal No.17 Of 2008 , it was not mandatory for a person convicted of murder to be sentenced to death.
12. THAT the contents contained in paragraph 22 of the Affidavit to oppose bond being granted to me are vehemently denied. He undertakes to abide by all the directions and mitigations measures that the court might put in order to ensure that any crucial witnesses are protected and that he shall not in anyway, deliberately or otherwise interfere with any or all of the prosecution witnesses.
13. THAT in his entire life he has never committed any crime and arrested in relation to any crime or unlawful act and this is my first time I have been in such a situation.
14. THAT he is a family man with a wife and two kids who solely depended on me and since he was arrested, his family has immensely suffered due to his absence by the virtue of being their breadwinner.
15. THAT his children are school going children and, in several occasions, their education has been curtailed due to required school fees and other related school expenses and this has become a great burden to my wife to support the said children by herself.
16. THAT by being kept custody all this time will jeopardize his life as family man and also as bread winner to his family.
17. THAT he has a fixed place of abode and he undertake to attend trial faithfully without fail and that he undertake to abide by all the directions and mitigation measures that the court might put in order to ensure that any crucial witnesses are protected and that he shall not in anyway, deliberately or otherwise interfere with any or all of the prosecution witnesses.
6. ACCUSED PERSONS WRITTEN SUBMISSIONS
APPLICATION FOR BAIL/BOND OBJECTION
The application for bail/bond was opposed by the Respondent who filed an Affidavit to oppose Bond dated 24th July, 2025 sworn by one SARAH MWEA , Assistant Director of Investigations, attached to the Independent Policing Oversight Authority (IPOA), Nairobi office and by one JONAH KARIUKI NYAMBURA, the biological father of the deceased, dated 18th August, 2025. When this matter came up for mention the court gave directions to the parties to file written submission hence the writing of this instance submissions.
ISSUES OF DETERMINATION
Based on the foregoing, we humbly submit that there is wily one base for determination
(a) Whether the Accused/Applicant Application for Bail should be allowed.
1. The law on bail in our jurisdiction is well settled. The overriding objective in all bail application is that it is a right to entitle an accused person to right to liberty pending the hearing and determination of his or her trial. This right to bail presumption of innocence on accused person under Article 50(2) of the all underscores the Constitution until the contrary is proved by the prosecution adducing evidence to that effect.
2. Article 49(1)(h) of the Constitution provides that: An accused person has the right...:
(h) To be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.
2. The Bail and Bond Policy Guidelines at paragraph 3.1 (d) underpins the right to reasonable bail and bond terms as follows:-
a) Bail or bond amounts and conditions shall be
reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial.
b) Accordingly, bail or bond terms should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.
3. The consideration in determining whether or not to grant bail are set out in Kenya Judiciary's bail and bond Policy Guidelines 2015 at paragraph 25 which set out judicial policy on bail as follows;
(a) The prosecution shall satisfy the court, on a balance of probabilities of the existence of compelling reasons that justify the denial of hall. The prosecution must therefore state the reasons that in its view should be persuade the court to deny the accused person ball, including the following;
(b) That the accused is likely to fail to attend court proceedings; of
(c) That the accused person is likely to commit, or abet the commission of, a serious offence; or
(d) That the exception to the right to bail stipulated under Section 123 A of the Criminal Procedure Code is applicable in the circumstances; or
(e) That the accused person is likely to endanger the
safety of victims, individuals or the public; or
(f) That the accused person is likely to interfere with
the witnesses or evidence; or
(g) That the accused person is likely to endanger
national security; or
(h) That is the public interest to detain the accused
person in custody.
5. The Constitution of Kenya Article 50(a) states that every accused person is entitled to be presumed innocent until proven guilty. The burden of proof is upon the state and does not shift to the accused contrary and the only important issue for the court while determining whether to grant bail or otherwise is whether the accused will comply with the court order in attending trial. The question in this matter becomes whether there is, on a balance of probabilities evidence that the accused is likely to abscond.
6. Equally, Section 123A of the Criminal Procedure Code States that before a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and when he is released on bail, by one or more sufficient sureties, conditioned that the person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or police officer.
7. In Republic vs. Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term "compelling reasons" as follows:-
‘The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond”.
8. In Republic vs Wycliffe Nyakwana Nyamweya (Criminal Revision 135 of 2016) (2016) КЕНС 7930 (KLR) (Crim), the court held that;
"It is therefore my view that the discretion to grant bail and set the conditions rests with the court. In all cases where the court is called upon to exercise its discretion in regard to whether or not it should grant bail pending trial, the most important consideration is whether the accused will attend court during trial".
9. In Republic Vs. Doris Wambu Iguku & 2 others (2022) EKLR High Court at Nyeri Criminal case No. E003 of 2022.
10. In Republic vs Mbiti Munguti (2020) Eklr High Court at Kitui Criminal Case No. 25 of 2019 in paragraph 28 it was held that it's upon the prosecution to prove that there are compelling reasons to justify the court in limiting the applicant's otherwise constitutionally guaranteed rights. Such compelling reasons cannot be said to have been satisfied based on bare averments.
11. In the Republic vs. Peter Muia Mawia high Court at Machakos Criminal Case No. 48 of 2015 it was held that bail should not therefore be denied on weak grounds but on real and cogent grounds that meet the high standard set in the Constitution.
12. In Republic Vs. John Njuguna Maina & 2 others (2019) eklr the High court at Machakos Criminal Case No. 22 of 2018 it was held that any issues affecting the accused or the members of public an be taken care by the Police whose duty is maintenance of security to all citizens.
13. In Republic v Philip Anyanya, 2010 ekir when faced with similar arguments stated that:-
".... I also reject the Idea that the accused person should be remanded and not granted bail for their own safety, security and good. Any accused person released on bail has his constitutional rights secured and protected. No member of the public or any other person can try and punish him. This can only be done by a competent court with appropriate jurisdiction. The practice by sections of Kenyans society to kill or murder innocent persons only on mere suspicion or even upon a citizen's arrest of suspects for various perceived offences including practicing witchcraft by mob lynching’s, torching etc in the so called "mob justice" is deplorable, criminal, unlawful. illegal and unconstitutional as a result, it would amount to a judicial aiding and abetting of this criminal trend of public murders or so called "mob justice" for the court to purport to deny bail to the accused so as to protect them from being lynched by members of the public.."
14. Godfrey Ngotho Mutiso Vs Republic (Msa) Criminal Appeal No.17 OF 2008, which upheld that it was not mandatory for a person convicted of murder to be sentenced to death.
8. VICTIMS’ SUBMISSIONS IN OPPOSITION OF THE
APPLICATION FOR BAIL DATED 15 TH AUGUST 2025. INTRODUCTION
1. The Victims submitted that the circumstances of this case are the living embodiment of the "compelling reasons not to be released" provided for under Article 49 (1) (h). In the following submissions, the Victims will demonstrate that the public interest, blue code of silence, witness interference, influence wielded by the Applicant, and the strength of the Prosecution's case are overwhelming factors that ought to prompt this court to deny the Application for ball.
B. SERIOUSNESS OF CHARGE AND SELF-PRESERVATION.
2. While the charge of murder, (conspicuously in light of the coldblooded summary execution style of assassination of the deceased) is a grave charge automatically attracting the death penalty, it is arguable whether on its own it is a sufficient basis to warrant the denial of bail. It is why the Victims invite the court to consider the opinion of Justice Sitati in Republic v David Ochieng Ajwang alias Daudi & 11 Others (2013) eKLR who bears that,
“Murder is a serious offence and attracts the death penalty. Self-preservation is a natural reaction or response of any human being. That self-preservation may take the form of ensuring critical evidence is suppressed forever or the applicant himself takes flight…”
3. The argument advanced here by the Victims is that while seriousness of the present charge may not by itself automatically warrant denial of bail, the court ought to consider ripple effect the same has upon the human psychology, and instinct triggered by the likelihood of being sentenced to death. For this reason, such self-preservation forms are directly antithetical to the cause of justice which demands a full. unadulterated hearing, where all evidence is presented untampered. and witnesses are, without interference, allowed an opportunity to be heard. Releasing the Applicant at this stage is in all likelihood going to imperil this goal.
4. By the same token, we invite the court to consider that in the case of Republic v Ahmed Mohammed Omar & 6 Others | 2010 ekLR, where Ochieng J, referred to the case of John Zenus Ungapake Tembo & 2 Others vs The Director of Public Prosecutions. M.5.C.A. CR. Appeal No. 16 of 1995, decided by the Supreme Court of Appeal in Malawi, the court made deep cutting expressions, to wit,
Fear is a natural instinct in human beings, so that generally speaking, the more serious the offence; a capital offence for example, and the sentence it may call for upon conviction; the greater the likelihood that the Accused person would be disposed to abscond………..
C. STRENGTH OF THE PROSECUTION'S CASE
5. Section 123A is instructive that the strength of the evidence that the accused committed the offence is a relevant consideration towards denying ball.
6. The Victims submit that while in Republic Vs Joseph Thiong'o Waweru & 17 others [2017] KEHC 6426 (KLR) Justice Joel Ngugi conceded to this factor being a potential landmine to be navigated cautiously as it borders closely to the presumption of innocence, it still must be considered as a compelling reason that may lead to denial of bail.
7. In the circumstances at hand, the Independent Policing Oversight and Authority - the Independent legislative body charged with the mandate to hold the Police accountable to the public in the performance of their functions - has filed an affidavit in opposition to bail dated 24th July 2025 in which it has independently certified that there is overwhelming proof that the accused person did in fact commit the offence of murder of the deceased herein, hence its report to the Office of the Director of Public Prosecutions recommending the present charge, Further, and of note, is that there are no other suspects or persons of interest in this matter other than the accused person. The affidavit also places on record material that points at witness interference, all which the court must consider.
D. WITNESS INTERFERENCE .
8. The victims submit that the accused person is likely to interfere with witnesses should he be granted bail at this time. This position is supported by cogent and compelling facts, to wit: The accused person is a member of the disciplined forces. He possesses training that would be advantageous either in person or through proxy to contact witnesses who are known to him. He also has access to a wider network of other members of the police force, who actively helping their colleagues escape accountability either by suppressing evidence and intimidating witnesses, or simply overall are discouraged from incriminating other officers.
Justice Khavedza in Republic Vs Samson Kiprotich Taalam & 5 Others 2025 eKLR, in denying the accused persons bail, agreed with this position by observing that.
Para 51. "...The law requires proof of Interference in the sense of Influencing, compromising, Inducing, or Intimidating a witness so as to affect his or her testimony... Para 52. "...In the present case, I am persuaded that the fear expressed Is not speculative but real. The accused persons' positions as police officers, with residual authority and access to networks within the service, present a genuine and Imminent risk of Interference with key witnesses specifically those from the National Police Service and civilian witnesses. In the circumstances, I am Inclined to agree with the prosecution and find that the apprehension of witness interference is well-founded. I therefore, hold that this constitutes a compelling reason against the grant of bail to the 1 st 2 nd and 3 rd accused persons.”
In like manner, the Accused person, though interdicted retains influence, and ties within the National Police Service, all of which can be leveraged to defeat justice upon being admitted to ball.
9. Further, in light of the brazen manner in which the deceased person was shot by the Applicant, releasing him at this point is likely to send a chilling message to witnesses against testifying, out of fear that a similar fate might befall them.
E. PUBLIC INTEREST
10. The Victims submit that the right to bail is not absolute and the same may be denied, in circumstances such as these, where granting the same is highly likely to undermine public confidence in the administration of justice. The tragic shooting of Boniface Kariuki did not only lead to the unfortunate loss of life, but also to public rage across the country. reflecting the gravity with which the nation received this horrific news.
11. In Republic vs Taalam & 5 Others (Supra). Khavedza J found as follows. Para 59.
“Paragraph 59 “ Public Interest is a recognized consideration in ball Jurisprudence. While the constitutional presumption is that an accused person shall be released on reasonable bond or ball terms pending trial, Article 24 of the Constitution permits the limitation of rights where such limitation is reasonable and Justifiable in an open and democratic society. The courts have consistently held that in certain cases, public order and the preservation of peace may amount to compelling reasons to restrict liberty. The balancing exercise must therefore weigh the Individual right to ball against the collective Interest of society in maintaining order, security, and confidence in the administration of Justice”.
12. To bolster this argument, the Victims submit that Guideline 4.9 (K) of the Bail and Bond Policy Guidelines is instructive that "Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would be likely to lead to a public disturbance.
13. The public has been following every step of this journey, from the moment Boniface Kariuki was shot with impunity, rushed to hospital, taken in for surgery, declared brain dead, and ultimately passed on. The nation has stood in solidarity with his family, and even went to see him in hospital when they could. In these circumstances, the death of Boniface is still a fresh wound in the conscience of the nation, and releasing the only suspect in his murder would erode the already dwindling confidence the public may have in the judicial system. As such, the collective interest of the society in this case immediately and inarguable outweigh the Applicant's right to bail.
RESPONDENTS WRITTEN SUBMISSIONS IN OPPOSING BAIL/BOND APPLICATION
14. The Republic opposes the said application relying on the Affidavit sworn on 24 th July 2025 by Sarah Mwea, Assistant Director of Investigations at IPOA, as well as the Affidavit of the deceased’s father, Jonah Kariuki Nyambura.
15. In Republic vs. Muneer Harron Ismail & Another [2018] eKLR, the Court observed that where evidence against an accused is strong and conviction probable, the risk of absconding increases significantly.
16. In Republic vs Danford Kabage Mwangi [2016] eKLR, the court held that the more serious the offence and penalty, the greater the incentive for the accused to abscond.
17. In Republic vs Dwight Sagaray & 4 Others [2013] eKLR , the Court held that interference with witnesses, whether directly or indirectly, constitutes a compelling reason to deny bail.
18. In Republic vs Fredrick Ole Leliman & 4 Others (the Willy Kimani Case) [2016] eKL.R. the Court denied bail to Police Officers facing murder charges on grounds of public interest, seriousness of offence, and likelihood of interference with witnesses.
19. In Ng'ang'a vs Republic [1985] KLR 451 , the Court held that:
“The primary consideration is whether the interests of justice will be served by granting bail.”
20. In Republic vs Muneer Harron Isamil & Another [2018] eKLR, the Court observed that where evidence against an accused is strong and conviction probable, the risk of absconding increases significantly.
21. In Republic vs Joram Mwenda Guantai [2001] eKLR, the Court stressed that bail decisions must balance the accused's rights with the rights of victims and the wider public interest.
ANALYSIS & DETERMINATION
22. The issue for determination is grant or denial of bail and
bond to the Applicant/Accused person.
The Court has considered detailed and extensive pleadings oral and written submissions by respective parties, learned Counsel for Applicant, Respondents; Office of Director of Public Prosecution (ODPP) & Independent Police Oversight Authority (IPOA) and Victims particularly father of the deceased.
23. The role of the Court in determining applications of bail/bond entail determining cases for grant of bail and bond includes consideration of special interests; vulnerable offenders, and victims of crime and adherence to the Law on Bail and Bond pending Trial settled as follows;
The right to bail pending trial is not absolute; bail can be denied if there are compelling reasons to warrant denial of bail.
"An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a char
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1. The Accused Person KLinzy Baraza Masinde is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap.63 Laws of Kenya.
Particulars of the offence being that on the 17 th June 2025 outside Imenti House Nairobi Central Business District within Nairobi County he murdered Boniface Kariuki Mwangi.
2. The Mental Assessment report declared the Accused person as FIT TO PLEAD.
3. The Trial Court had the Charge /Information read to the Accused person and he pleaded NOT GUILTY.
NOTICE OF MOTION
2. On 15 th August 2025 the Accused person filed a Notice of Motion seeking the following orders:-
1) THAT Court be pleased to certify this application as urgent and fit to be heard on priority basis.
2) THAT service of this application be dispensed with in the first instance
3) THAT the court be pleased to release the Applicant on reasonable bond or cash bail terms, pending the trial of the Applicant in the above Criminal Case
4) THAT the court do make any other order it deems fit in the circumstances.
3. GROUNDS OF APPLICATION FOR ORDERS
1. That the Applicant is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code to which offence he pleaded not guilty.
2. The said offence is bailable and hence the Applicant is entitled to be released on reasonable bail/bond as of right pending the bearing and determination of the case.
3. That the Applicant was the bread winner of his young family catering for all the basics for his two children and wife together with his sickly and old mother and for the period he has been in custody, his family has been living from hand to mouth which is threatening the disintegration of his family which will negatively impact most on the children and the sick and old mother.
4. That the Applicant is a father of two young children who are school going children of tender years who have been in and out of school due to lack of finances and the wife who does not have any form of employment and was dependent on him has been unable to feed and provide for their education singlehandedly.
5. That his sickly and old mother and who requires urgently and timely medical attention has and continues to suffer as a result of the applicant detention, the applicant having been his main source of help.
6. The applicant who has been charged in the aforesaid Criminal Case, is Constitutionally entitled under Article 49 (1) (h) of the Constitution of Kenya to be released on bond or bail, on reasonable conditions, pending trial and there are no compelling or irresistible reasons why he should be denied bail as required by Article 49(1) (h) of the Constitution of Kenya.
7. That under Article 50 (2) of the Constitution of Kenya, an accused person and in this case, the Applicant has a right to be presumed innocent until the contrary is proved.
8. That this Court has the judicial discretion to ensure that the applicant's right to liberty and fair trial is protected pending trial by granting him bail.
9. The Applicant the applicant is ready, able and willing to shade by any bond or bail terms and conditions that may be imposed by Court
10. The applicant will not abscond and will attend all the
proceedings whenever and wherever required.
11. That the applicant has a fixed place of abode in Kayole and also at Bungoma all within the Republic of Kenya.
12. That the applicant is not a flight risk.
13. That the applicant will not interfere with witnesses in the case.
14. That the applicant will not endanger the safety of the
public.
15. This application is bona fide , well merited, well founded and is made in the interest of justice and it would be fair and just to grant the orders sought.
16. THAT no loss or prejudice will be suffered by the Respondent if the orders sought herein above are granted.
17. That unless bail is granted, the Accused person's
children's lives and that of his mother will be utterly destroyed and justice will not be seen to have been done if it can destroy the lives of the two young children and his entire dependent family.
4. SUPPORTING AFFIDAVIT OF KLINZY BARASA
MASINDE
1. On 15 th September 2025 the accused person filed a supporting affidavit and stated as follows:
2. THAT he was informed by his advocate, VK YEGON and
ABDIRAZAK MOHAMED , that all offences are bailable including serious offences as murder and that he is therefore entitled to be granted reasonable bail or bond as a matter of constitutional right and pray that the court grant him the same.
3. THAT through his lawyer he made this application for bail pending trial of the aforementioned case and reiterated the particulars and details outlined in the Grounds For the Application and Orders outlined above.
5. ACCUSED’S PERSON ‘S REPLYING AFFIDAVIT IN
OPPOSITION OF BAIL
1. THAT the averments contained as from paragraph 2-6 of the Affidavit to oppose Bond/bail are admitted as far as it is mere descriptive of the events leading to this case and the statutory investigative role /powers of the independent Policing Oversight Authority (IPOA)
2. THAT am informed by my Advocates of record which information I believe to be true that the right to boil/bond is not absolute and where there are compelling reasons, the said right may be restricted. Nevertheless, the constitution expressly confers the said right and it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.
3. THAT I am equally informed by my Advocates on record which information I believe to be true that Article 49 of the Constitution of Kenya 2010 articulates the rights of the arrested persons and more so. Article 49(1)(h) categorically stipulates that an arrested person has a right to be released on ball or bond, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
4. THAT the compelling reasons which might deny an accused person to be granted to bail and/or bond include, the Accused; being capable of failing to attend court, endanger the safety of victims, individuals, or the public. Interfere with witnesses or evidence, endanger national security or public safety, flight risk, serial offender, fleeing from Court's jurisdiction amongst other reasons.
5. In the case of Republic vs Joktan Mayende & 4 Others (2012) eKLR, the Court stated that, “the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Ball should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.
6. In the case of Republic V Danford Kabage Mwangi (2016) eKLR. the court while defining what amounts to compelling reasons stated that ".....compelling reasons grounds ought to be proved to the satisfaction of the Court, mere allegations or possibility is not enough. Bail cannot be refused simply because the accused has been charged with a very serious offence."
7. In the case of Republic V Muneer Harron Ismael & 4 others, HC Criminal Revision case NO. 51 OF 2009 . Hon Warsame J (as he then was) stated that...
" in deciding whether or not to grant bail, the basic factor or denominator is to secure the attendance of the accused person to answer the charges brought against him..."
8. THAT the contents contained in paragraph 17 and 18 of the Affidavit to oppose bond being granted to me are vehemently denied, I am advised by my advocates on record which advice I believe to be true that the idea that I should not be granted bail or bond for my own safety, security and good goes against my constitutional rights and that the court in Republic v Philip Anyanya, 2010 eKLR when faced with similar arguments stated that
"....I also reject the idea that the accused person should be remanded and not granted bail for their own safety, security and good. Any accused person released on bail has his constitutional rights secured and protected. No member of the public or any other person can try and punish him. This can only be done by a competent court with appropriate jurisdiction. The practice by sections of Kenyans society to kill or murder innocent persons only on mere suspicion or even upon a citizen's arrest of suspects for various perceived offences including practicing witchcraft by mob lynching torching etc in the so called "mob justice" is deplorable, criminal, unlawful. illegal and unconstitutional as a result, it would amount to a judicial aiding and abetting of this criminal trend of public murders or so called "mob justice" for the court to purport to deny bail to the accused so as to protect them from being lynched by members of the public.."
9. THAT the contents contained in paragraph 19 of the Affidavit to oppose bond being granted to me are vehemently denied. he has been advised by my advocates on record which advice I believe to be true that at this stage, the court cannot form an opinion on the direction the prosecution case may take as the court has not heard any of the witnesses and/or evidence and therefore the prosecution's fears are premature and that while flight risk is a legitimate concern, conditions can be set to mitigate the risk without resorting to pre-trial dentation which offends his constitutional rights to liberty and fair trial.
10. THAT further to the above, I'm well aware that since the early 1980's. nobody in Kenya has ever been hanged even though many have been sentenced to death and therefore the fears of the state over the possible sentencing and particularly the deaths sentence is misplaced and I genuinely believe that the charges against me will be discharge in the long run.
11. In Godfrey Ngotho Mutiso Vs Republic (Msa) Criminal Appeal No.17 Of 2008 , it was not mandatory for a person convicted of murder to be sentenced to death.
12. THAT the contents contained in paragraph 22 of the Affidavit to oppose bond being granted to me are vehemently denied. He undertakes to abide by all the directions and mitigations measures that the court might put in order to ensure that any crucial witnesses are protected and that he shall not in anyway, deliberately or otherwise interfere with any or all of the prosecution witnesses.
13. THAT in his entire life he has never committed any crime and arrested in relation to any crime or unlawful act and this is my first time I have been in such a situation.
14. THAT he is a family man with a wife and two kids who solely depended on me and since he was arrested, his family has immensely suffered due to his absence by the virtue of being their breadwinner.
15. THAT his children are school going children and, in several occasions, their education has been curtailed due to required school fees and other related school expenses and this has become a great burden to my wife to support the said children by herself.
16. THAT by being kept custody all this time will jeopardize his life as family man and also as bread winner to his family.
17. THAT he has a fixed place of abode and he undertake to attend trial faithfully without fail and that he undertake to abide by all the directions and mitigation measures that the court might put in order to ensure that any crucial witnesses are protected and that he shall not in anyway, deliberately or otherwise interfere with any or all of the prosecution witnesses.
6. ACCUSED PERSONS WRITTEN SUBMISSIONS
APPLICATION FOR BAIL/BOND OBJECTION
The application for bail/bond was opposed by the Respondent who filed an Affidavit to oppose Bond dated 24th July, 2025 sworn by one SARAH MWEA , Assistant Director of Investigations, attached to the Independent Policing Oversight Authority (IPOA), Nairobi office and by one JONAH KARIUKI NYAMBURA, the biological father of the deceased, dated 18th August, 2025. When this matter came up for mention the court gave directions to the parties to file written submission hence the writing of this instance submissions.
ISSUES OF DETERMINATION
Based on the foregoing, we humbly submit that there is wily one base for determination
(a) Whether the Accused/Applicant Application for Bail should be allowed.
1. The law on bail in our jurisdiction is well settled. The overriding objective in all bail application is that it is a right to entitle an accused person to right to liberty pending the hearing and determination of his or her trial. This right to bail presumption of innocence on accused person under Article 50(2) of the all underscores the Constitution until the contrary is proved by the prosecution adducing evidence to that effect.
2. Article 49(1)(h) of the Constitution provides that: An accused person has the right...:
(h) To be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.
2. The Bail and Bond Policy Guidelines at paragraph 3.1 (d) underpins the right to reasonable bail and bond terms as follows:-
a) Bail or bond amounts and conditions shall be
reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial.
b) Accordingly, bail or bond terms should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.
3. The consideration in determining whether or not to grant bail are set out in Kenya Judiciary's bail and bond Policy Guidelines 2015 at paragraph 25 which set out judicial policy on bail as follows;
(a) The prosecution shall satisfy the court, on a balance of probabilities of the existence of compelling reasons that justify the denial of hall. The prosecution must therefore state the reasons that in its view should be persuade the court to deny the accused person ball, including the following;
(b) That the accused is likely to fail to attend court proceedings; of
(c) That the accused person is likely to commit, or abet the commission of, a serious offence; or
(d) That the exception to the right to bail stipulated under Section 123 A of the Criminal Procedure Code is applicable in the circumstances; or
(e) That the accused person is likely to endanger the
safety of victims, individuals or the public; or
(f) That the accused person is likely to interfere with
the witnesses or evidence; or
(g) That the accused person is likely to endanger
national security; or
(h) That is the public interest to detain the accused
person in custody.
5. The Constitution of Kenya Article 50(a) states that every accused person is entitled to be presumed innocent until proven guilty. The burden of proof is upon the state and does not shift to the accused contrary and the only important issue for the court while determining whether to grant bail or otherwise is whether the accused will comply with the court order in attending trial. The question in this matter becomes whether there is, on a balance of probabilities evidence that the accused is likely to abscond.
6. Equally, Section 123A of the Criminal Procedure Code States that before a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and when he is released on bail, by one or more sufficient sureties, conditioned that the person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or police officer.
7. In Republic vs. Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term "compelling reasons" as follows:-
‘The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond”.
8. In Republic vs Wycliffe Nyakwana Nyamweya (Criminal Revision 135 of 2016) (2016) КЕНС 7930 (KLR) (Crim), the court held that;
"It is therefore my view that the discretion to grant bail and set the conditions rests with the court. In all cases where the court is called upon to exercise its discretion in regard to whether or not it should grant bail pending trial, the most important consideration is whether the accused will attend court during trial".
9. In Republic Vs. Doris Wambu Iguku & 2 others (2022) EKLR High Court at Nyeri Criminal case No. E003 of 2022.
10. In Republic vs Mbiti Munguti (2020) Eklr High Court at Kitui Criminal Case No. 25 of 2019 in paragraph 28 it was held that it's upon the prosecution to prove that there are compelling reasons to justify the court in limiting the applicant's otherwise constitutionally guaranteed rights. Such compelling reasons cannot be said to have been satisfied based on bare averments.
11. In the Republic vs. Peter Muia Mawia high Court at Machakos Criminal Case No. 48 of 2015 it was held that bail should not therefore be denied on weak grounds but on real and cogent grounds that meet the high standard set in the Constitution.
12. In Republic Vs. John Njuguna Maina & 2 others (2019) eklr the High court at Machakos Criminal Case No. 22 of 2018 it was held that any issues affecting the accused or the members of public an be taken care by the Police whose duty is maintenance of security to all citizens.
13. In Republic v Philip Anyanya, 2010 ekir when faced with similar arguments stated that:-
".... I also reject the Idea that the accused person should be remanded and not granted bail for their own safety, security and good. Any accused person released on bail has his constitutional rights secured and protected. No member of the public or any other person can try and punish him. This can only be done by a competent court with appropriate jurisdiction. The practice by sections of Kenyans society to kill or murder innocent persons only on mere suspicion or even upon a citizen's arrest of suspects for various perceived offences including practicing witchcraft by mob lynching’s, torching etc in the so called "mob justice" is deplorable, criminal, unlawful. illegal and unconstitutional as a result, it would amount to a judicial aiding and abetting of this criminal trend of public murders or so called "mob justice" for the court to purport to deny bail to the accused so as to protect them from being lynched by members of the public.."
14. Godfrey Ngotho Mutiso Vs Republic (Msa) Criminal Appeal No.17 OF 2008, which upheld that it was not mandatory for a person convicted of murder to be sentenced to death.
8. VICTIMS’ SUBMISSIONS IN OPPOSITION OF THE
APPLICATION FOR BAIL DATED 15 TH AUGUST 2025. INTRODUCTION
1. The Victims submitted that the circumstances of this case are the living embodiment of the "compelling reasons not to be released" provided for under Article 49 (1) (h). In the following submissions, the Victims will demonstrate that the public interest, blue code of silence, witness interference, influence wielded by the Applicant, and the strength of the Prosecution's case are overwhelming factors that ought to prompt this court to deny the Application for ball.
B. SERIOUSNESS OF CHARGE AND SELF-PRESERVATION.
2. While the charge of murder, (conspicuously in light of the coldblooded summary execution style of assassination of the deceased) is a grave charge automatically attracting the death penalty, it is arguable whether on its own it is a sufficient basis to warrant the denial of bail. It is why the Victims invite the court to consider the opinion of Justice Sitati in Republic v David Ochieng Ajwang alias Daudi & 11 Others (2013) eKLR who bears that,
“Murder is a serious offence and attracts the death penalty. Self-preservation is a natural reaction or response of any human being. That self-preservation may take the form of ensuring critical evidence is suppressed forever or the applicant himself takes flight…”
3. The argument advanced here by the Victims is that while seriousness of the present charge may not by itself automatically warrant denial of bail, the court ought to consider ripple effect the same has upon the human psychology, and instinct triggered by the likelihood of being sentenced to death. For this reason, such self-preservation forms are directly antithetical to the cause of justice which demands a full. unadulterated hearing, where all evidence is presented untampered. and witnesses are, without interference, allowed an opportunity to be heard. Releasing the Applicant at this stage is in all likelihood going to imperil this goal.
4. By the same token, we invite the court to consider that in the case of Republic v Ahmed Mohammed Omar & 6 Others | 2010 ekLR, where Ochieng J, referred to the case of John Zenus Ungapake Tembo & 2 Others vs The Director of Public Prosecutions. M.5.C.A. CR. Appeal No. 16 of 1995, decided by the Supreme Court of Appeal in Malawi, the court made deep cutting expressions, to wit,
Fear is a natural instinct in human beings, so that generally speaking, the more serious the offence; a capital offence for example, and the sentence it may call for upon conviction; the greater the likelihood that the Accused person would be disposed to abscond………..
C. STRENGTH OF THE PROSECUTION'S CASE
5. Section 123A is instructive that the strength of the evidence that the accused committed the offence is a relevant consideration towards denying ball.
6. The Victims submit that while in Republic Vs Joseph Thiong'o Waweru & 17 others [2017] KEHC 6426 (KLR) Justice Joel Ngugi conceded to this factor being a potential landmine to be navigated cautiously as it borders closely to the presumption of innocence, it still must be considered as a compelling reason that may lead to denial of bail.
7. In the circumstances at hand, the Independent Policing Oversight and Authority - the Independent legislative body charged with the mandate to hold the Police accountable to the public in the performance of their functions - has filed an affidavit in opposition to bail dated 24th July 2025 in which it has independently certified that there is overwhelming proof that the accused person did in fact commit the offence of murder of the deceased herein, hence its report to the Office of the Director of Public Prosecutions recommending the present charge, Further, and of note, is that there are no other suspects or persons of interest in this matter other than the accused person. The affidavit also places on record material that points at witness interference, all which the court must consider.
D. WITNESS INTERFERENCE .
8. The victims submit that the accused person is likely to interfere with witnesses should he be granted bail at this time. This position is supported by cogent and compelling facts, to wit: The accused person is a member of the disciplined forces. He possesses training that would be advantageous either in person or through proxy to contact witnesses who are known to him. He also has access to a wider network of other members of the police force, who actively helping their colleagues escape accountability either by suppressing evidence and intimidating witnesses, or simply overall are discouraged from incriminating other officers.
Justice Khavedza in Republic Vs Samson Kiprotich Taalam & 5 Others 2025 eKLR, in denying the accused persons bail, agreed with this position by observing that.
Para 51. "...The law requires proof of Interference in the sense of Influencing, compromising, Inducing, or Intimidating a witness so as to affect his or her testimony... Para 52. "...In the present case, I am persuaded that the fear expressed Is not speculative but real. The accused persons' positions as police officers, with residual authority and access to networks within the service, present a genuine and Imminent risk of Interference with key witnesses specifically those from the National Police Service and civilian witnesses. In the circumstances, I am Inclined to agree with the prosecution and find that the apprehension of witness interference is well-founded. I therefore, hold that this constitutes a compelling reason against the grant of bail to the 1 st 2 nd and 3 rd accused persons.”
In like manner, the Accused person, though interdicted retains influence, and ties within the National Police Service, all of which can be leveraged to defeat justice upon being admitted to ball.
9. Further, in light of the brazen manner in which the deceased person was shot by the Applicant, releasing him at this point is likely to send a chilling message to witnesses against testifying, out of fear that a similar fate might befall them.
E. PUBLIC INTEREST
10. The Victims submit that the right to bail is not absolute and the same may be denied, in circumstances such as these, where granting the same is highly likely to undermine public confidence in the administration of justice. The tragic shooting of Boniface Kariuki did not only lead to the unfortunate loss of life, but also to public rage across the country. reflecting the gravity with which the nation received this horrific news.
11. In Republic vs Taalam & 5 Others (Supra). Khavedza J found as follows. Para 59.
“Paragraph 59 “ Public Interest is a recognized consideration in ball Jurisprudence. While the constitutional presumption is that an accused person shall be released on reasonable bond or ball terms pending trial, Article 24 of the Constitution permits the limitation of rights where such limitation is reasonable and Justifiable in an open and democratic society. The courts have consistently held that in certain cases, public order and the preservation of peace may amount to compelling reasons to restrict liberty. The balancing exercise must therefore weigh the Individual right to ball against the collective Interest of society in maintaining order, security, and confidence in the administration of Justice”.
12. To bolster this argument, the Victims submit that Guideline 4.9 (K) of the Bail and Bond Policy Guidelines is instructive that "Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would be likely to lead to a public disturbance.
13. The public has been following every step of this journey, from the moment Boniface Kariuki was shot with impunity, rushed to hospital, taken in for surgery, declared brain dead, and ultimately passed on. The nation has stood in solidarity with his family, and even went to see him in hospital when they could. In these circumstances, the death of Boniface is still a fresh wound in the conscience of the nation, and releasing the only suspect in his murder would erode the already dwindling confidence the public may have in the judicial system. As such, the collective interest of the society in this case immediately and inarguable outweigh the Applicant's right to bail.
RESPONDENTS WRITTEN SUBMISSIONS IN OPPOSING BAIL/BOND APPLICATION
14. The Republic opposes the said application relying on the Affidavit sworn on 24 th July 2025 by Sarah Mwea, Assistant Director of Investigations at IPOA, as well as the Affidavit of the deceased’s father, Jonah Kariuki Nyambura.
15. In Republic vs. Muneer Harron Ismail & Another [2018] eKLR, the Court observed that where evidence against an accused is strong and conviction probable, the risk of absconding increases significantly.
16. In Republic vs Danford Kabage Mwangi [2016] eKLR, the court held that the more serious the offence and penalty, the greater the incentive for the accused to abscond.
17. In Republic vs Dwight Sagaray & 4 Others [2013] eKLR , the Court held that interference with witnesses, whether directly or indirectly, constitutes a compelling reason to deny bail.
18. In Republic vs Fredrick Ole Leliman & 4 Others (the Willy Kimani Case) [2016] eKL.R. the Court denied bail to Police Officers facing murder charges on grounds of public interest, seriousness of offence, and likelihood of interference with witnesses.
19. In Ng'ang'a vs Republic [1985] KLR 451 , the Court held that:
“The primary consideration is whether the interests of justice will be served by granting bail.”
20. In Republic vs Muneer Harron Isamil & Another [2018] eKLR, the Court observed that where evidence against an accused is strong and conviction probable, the risk of absconding increases significantly.
21. In Republic vs Joram Mwenda Guantai [2001] eKLR, the Court stressed that bail decisions must balance the accused's rights with the rights of victims and the wider public interest.
ANALYSIS & DETERMINATION
22. The issue for determination is grant or denial of bail and
bond to the Applicant/Accused person.
The Court has considered detailed and extensive pleadings oral and written submissions by respective parties, learned Counsel for Applicant, Respondents; Office of Director of Public Prosecution (ODPP) & Independent Police Oversight Authority (IPOA) and Victims particularly father of the deceased.
23. The role of the Court in determining applications of bail/bond entail determining cases for grant of bail and bond includes consideration of special interests; vulnerable offenders, and victims of crime and adherence to the Law on Bail and Bond pending Trial settled as follows;
The right to bail pending trial is not absolute; bail can be denied if there are compelling reasons to warrant denial of bail.
"An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a char
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