REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKADARA
MAKADARA HIGH COURT
CRIMINAL CASE NO. E007 OF 2026
REPUBLIC…………………………….….………................…APPLICANT
VERSUS
SGT GODWIN MWASHUKE MJOMBA…………………1 ST RESPONDENT
PATRICK MUTUNGA TITUS…………………………..2 ND RESPONDENT
RULING
1. On 14/4/2026 the accused Godwin Mwashuke Mjomba was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He denied the charges and a plea of not guilty was entered for him.
2. The states through GUYO ADANO an investigating officer opposed his release on bond. He swore an affidavit opposing bond. The accused person swore an affidavit in reply dated 9/3/2026.
3. On 10/6/2026 Counsel made oral submissions Mr. Migele addressed the court on his behalf and that of Mr. Orimba and Mr. Juma for the accused person. He referred to the pre-bail report filed insisting that the accused person had a fixed abode. That he is a family man and still a police officer who reports to a supervisor. That the averment that as a police officer he has skills to escape and conceal himself has no factual basis.
4. Mr. Migele further submitted that the accused had not threatened anybody. He referred the court to two Court of Appeal decisions being Michael Juma Oyamo and another versus Republic and Republic versus Nuseba Mohammed Haji Osman Alias Ummu Fima Alias Ummalaub Criminal Appeal No. 103 of 2016.
5. Mr. Ochieng relied on the affidavit by the investigating officer. He also referred to the pre-bail report. He said that the accused does not live with his parents in Voi. That as a police officer the accused person is likely to endanger witnesses. He asked the court, if so inclined to release the accused person on bond only after key witnesses have testified.
6. I have considered the rival submissions. I have also benefited from the cited authorities. I have in mind the offence which the accused persons are facing.
7. It is agreed all round that the bond and bail is a constitutional right. The constitution under article 49 (1) (h) provides that an accused person has the right
‘(h) to be released on bond or bail, on reasonable conditions pending a charge and trial, unless there are compelling reasons not to be released.’
8. The issue for determination therefore is whether the prosecution has established compelling reasons to warrant limiting the constitutional right referred to above.
9. The ‘phrase’ compelling reasons is not defined by the constitution. In operationalizing this constitution right the applicant enacted Section 123 (A) of the Criminal Procedure Code which provides as follows:-
‘123(A) subject to Article 49 (i) (h) of the Constitution and not withstanding section 123 in making a decision on bail and bond the court shall have regard to all the relevant circumstances and all particulars.’
(a) The nature and seriousness of the offence.
(b) The character, antecedent’s associations and the community ties of the accused persons.
(c) The defendant’s record in respect of the fulfilment of the obligations and previous grants of bail and
(d) The strength of the evidence of having committed the offence.
10. The judiciary bail and bond policy guidelines guided by the constitution are statutory provisions above set out the procedures to be applied and deciding the question whether to grant or deny bond. At page 25 of the 2015 Guidelines it is stated: -
‘the following procedures should apply to the bail hearing’
(a) The prosecution shall satisfy the court on balance of probability of the existence of compelling reasons that justify the denial of bail. The prosecution must therefore state that reasons that in its view should persuade the court to deny the accused person bail including the following.
(b) That the accused person is likely to fail to attend court proceedings.,
(c) That the accused person is likely to commit an abet the commission of a sexual offence and
(d) That the except to the right to bail/stipulated under Section 123 (a) of the criminal procedure code is applicable in the circumstances and
(e) That the accused person is likely to interfere with the witnesses and evidence.
(f) That it is public interest to detain the accused person in custody.
11. Our court has come with what amounts to compelling reasons. In republic versus Joktan Mayende and 3 others (2012) KEHC 5551 (KLR) the High Court stated
‘the phrase of 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. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the constitution.
12. Earlier in Ng’ang’a versus Republic (1985) KLR 451 Chesoni J had stated: -
‘The court in exercising its discretion to grant bail to an accused person under Section 123 (i) and 3 of the criminal procedure code Cap 75 should consider the following facts.’
(a) In principle, the cause of presumption that a person charged with criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that: -
(i) The accused will fail to turn up at his trial or to surrender to custody.
(ii) The accused may commit further offences
(iii) He will obstruct the course of justice.
13. Looking at the affidavit in opposing the investigating officer has sought to establish compelling reasons in paragraph 3 where he stated that the accused has no fixed abode and his chances of absconding are high considering his ability to evade capture as police man. That he may be harmed due to hostility from members of community where the offence was committed.
14. The investigating officer further references the gravity of the offence citing public outage. That it is in the public interest that he remains in custody. Finally, he swears that one of the key witness had received calls from strange numbers. This is a suggestion that the accused may be interfering with potential witnesses.
15. This affidavit lists the grounds set out under Section 123A of the CPC and the Judicial bail and bond guidelines. It is not enough to just state the fear harbored by the investigating officers. As stated in the authorities above in Republic versus Jokta Malende the grounds should be rare and cogent. As held by the Court of Appeal in Republic versus Mohammed Haj Osman (2018) eKLR.
‘denial of a constitutional right is not a matter to be taken lightly and the time any claim made against an accused person aimed at curtailing the constitutional right to liberty must not be made on speculation as or conjecture.’
16. On the issue of whether the accused person has a fixed abode it is common ground that he has been a police officer for 25 years. He is still abet with grave charges hanging over him. He cannot be described as vagabond. The state has his particulars involving next of kin and a origin. I have seen the pre bail report. The accused person is well known by his area chief. The chief cited strong family ties.
17. On the averment that the accused may face hostility and run into harm if released I find this fear unsubstantiated. When the state submits that a citizen should be detained for his own safety it sounds like an admission that his security cannot be guaranteed. I find that submission to be a suggested that the state will abdicate its constitutional duty and allow members of public take the law into their own hands. In my view this cannot amount to a compelling reason. It also flies in the face of the constitutional presumption of innocence until proven guilty. My finding on this limb covers the concerns raised under public code and interest. It is a fact that the alleged offence is grave but it will still have to be proved to the required standards.
18. On the question of witness interference if the alleged that a witness has been receiving calls from strange numbers, it is within the powers of the IPOA and the police to trace telephone numbers. The strange numbers and the callers had not been linked to the accused person. These are the kind of claim the court in Republic versus Nuseiba Mohammed Osman warned against when it stated that constitutional right should not be curtained on speculation or conjecture. The prosecution needed to provide cogent evidence to establish interference. I find that on this limb the evidence laid out in the affidavit by GUYO ADANO falls short of the Constitutional threshold of compelling reasons.
19. My findings above lead me to conclude that the objection to the accused person being released on bond is without merit. It is hereby dismissed. The accused person will be admitted to bond.
20. The Constitutional command is to admit the accused person to reasonable bond terms. I had listed the consideration in the preceding paragraphs. I have considered the pre-bail report and the nature of the offence. Accused person is charged with murder with potential severe sentences if convicted. I am of the view that a bond of Kshs. 500,000/= with a surety of similar amount is reasonable in the circumstances. It is so ordered.
Court
Ruling delivered in Virtual platform
Mr. Migele for the accused. Appearing with Orimba
Mr. Langat – for IPOA
Ms. Ndiema for the state
Hon. A.K Ithuku
JUDGE
Mr. Migele
I request for a hearing date.
Court
Hearing on 21/09/2026.
Hon. A.K Ithuku
JUDGE
7 | Page MAKADARA CRIMINAL CASE NO. E007 OF 2026
IN THE HIGH COURT OF KENYA AT MAKADARA
MAKADARA HIGH COURT
CRIMINAL CASE NO. E007 OF 2026
REPUBLIC…………………………….….………................…APPLICANT
VERSUS
SGT GODWIN MWASHUKE MJOMBA…………………1 ST RESPONDENT
PATRICK MUTUNGA TITUS…………………………..2 ND RESPONDENT
RULING
1. On 14/4/2026 the accused Godwin Mwashuke Mjomba was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He denied the charges and a plea of not guilty was entered for him.
2. The states through GUYO ADANO an investigating officer opposed his release on bond. He swore an affidavit opposing bond. The accused person swore an affidavit in reply dated 9/3/2026.
3. On 10/6/2026 Counsel made oral submissions Mr. Migele addressed the court on his behalf and that of Mr. Orimba and Mr. Juma for the accused person. He referred to the pre-bail report filed insisting that the accused person had a fixed abode. That he is a family man and still a police officer who reports to a supervisor. That the averment that as a police officer he has skills to escape and conceal himself has no factual basis.
4. Mr. Migele further submitted that the accused had not threatened anybody. He referred the court to two Court of Appeal decisions being Michael Juma Oyamo and another versus Republic and Republic versus Nuseba Mohammed Haji Osman Alias Ummu Fima Alias Ummalaub Criminal Appeal No. 103 of 2016.
5. Mr. Ochieng relied on the affidavit by the investigating officer. He also referred to the pre-bail report. He said that the accused does not live with his parents in Voi. That as a police officer the accused person is likely to endanger witnesses. He asked the court, if so inclined to release the accused person on bond only after key witnesses have testified.
6. I have considered the rival submissions. I have also benefited from the cited authorities. I have in mind the offence which the accused persons are facing.
7. It is agreed all round that the bond and bail is a constitutional right. The constitution under article 49 (1) (h) provides that an accused person has the right
‘(h) to be released on bond or bail, on reasonable conditions pending a charge and trial, unless there are compelling reasons not to be released.’
8. The issue for determination therefore is whether the prosecution has established compelling reasons to warrant limiting the constitutional right referred to above.
9. The ‘phrase’ compelling reasons is not defined by the constitution. In operationalizing this constitution right the applicant enacted Section 123 (A) of the Criminal Procedure Code which provides as follows:-
‘123(A) subject to Article 49 (i) (h) of the Constitution and not withstanding section 123 in making a decision on bail and bond the court shall have regard to all the relevant circumstances and all particulars.’
(a) The nature and seriousness of the offence.
(b) The character, antecedent’s associations and the community ties of the accused persons.
(c) The defendant’s record in respect of the fulfilment of the obligations and previous grants of bail and
(d) The strength of the evidence of having committed the offence.
10. The judiciary bail and bond policy guidelines guided by the constitution are statutory provisions above set out the procedures to be applied and deciding the question whether to grant or deny bond. At page 25 of the 2015 Guidelines it is stated: -
‘the following procedures should apply to the bail hearing’
(a) The prosecution shall satisfy the court on balance of probability of the existence of compelling reasons that justify the denial of bail. The prosecution must therefore state that reasons that in its view should persuade the court to deny the accused person bail including the following.
(b) That the accused person is likely to fail to attend court proceedings.,
(c) That the accused person is likely to commit an abet the commission of a sexual offence and
(d) That the except to the right to bail/stipulated under Section 123 (a) of the criminal procedure code is applicable in the circumstances and
(e) That the accused person is likely to interfere with the witnesses and evidence.
(f) That it is public interest to detain the accused person in custody.
11. Our court has come with what amounts to compelling reasons. In republic versus Joktan Mayende and 3 others (2012) KEHC 5551 (KLR) the High Court stated
‘the phrase of 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. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the constitution.
12. Earlier in Ng’ang’a versus Republic (1985) KLR 451 Chesoni J had stated: -
‘The court in exercising its discretion to grant bail to an accused person under Section 123 (i) and 3 of the criminal procedure code Cap 75 should consider the following facts.’
(a) In principle, the cause of presumption that a person charged with criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that: -
(i) The accused will fail to turn up at his trial or to surrender to custody.
(ii) The accused may commit further offences
(iii) He will obstruct the course of justice.
13. Looking at the affidavit in opposing the investigating officer has sought to establish compelling reasons in paragraph 3 where he stated that the accused has no fixed abode and his chances of absconding are high considering his ability to evade capture as police man. That he may be harmed due to hostility from members of community where the offence was committed.
14. The investigating officer further references the gravity of the offence citing public outage. That it is in the public interest that he remains in custody. Finally, he swears that one of the key witness had received calls from strange numbers. This is a suggestion that the accused may be interfering with potential witnesses.
15. This affidavit lists the grounds set out under Section 123A of the CPC and the Judicial bail and bond guidelines. It is not enough to just state the fear harbored by the investigating officers. As stated in the authorities above in Republic versus Jokta Malende the grounds should be rare and cogent. As held by the Court of Appeal in Republic versus Mohammed Haj Osman (2018) eKLR.
‘denial of a constitutional right is not a matter to be taken lightly and the time any claim made against an accused person aimed at curtailing the constitutional right to liberty must not be made on speculation as or conjecture.’
16. On the issue of whether the accused person has a fixed abode it is common ground that he has been a police officer for 25 years. He is still abet with grave charges hanging over him. He cannot be described as vagabond. The state has his particulars involving next of kin and a origin. I have seen the pre bail report. The accused person is well known by his area chief. The chief cited strong family ties.
17. On the averment that the accused may face hostility and run into harm if released I find this fear unsubstantiated. When the state submits that a citizen should be detained for his own safety it sounds like an admission that his security cannot be guaranteed. I find that submission to be a suggested that the state will abdicate its constitutional duty and allow members of public take the law into their own hands. In my view this cannot amount to a compelling reason. It also flies in the face of the constitutional presumption of innocence until proven guilty. My finding on this limb covers the concerns raised under public code and interest. It is a fact that the alleged offence is grave but it will still have to be proved to the required standards.
18. On the question of witness interference if the alleged that a witness has been receiving calls from strange numbers, it is within the powers of the IPOA and the police to trace telephone numbers. The strange numbers and the callers had not been linked to the accused person. These are the kind of claim the court in Republic versus Nuseiba Mohammed Osman warned against when it stated that constitutional right should not be curtained on speculation or conjecture. The prosecution needed to provide cogent evidence to establish interference. I find that on this limb the evidence laid out in the affidavit by GUYO ADANO falls short of the Constitutional threshold of compelling reasons.
19. My findings above lead me to conclude that the objection to the accused person being released on bond is without merit. It is hereby dismissed. The accused person will be admitted to bond.
20. The Constitutional command is to admit the accused person to reasonable bond terms. I had listed the consideration in the preceding paragraphs. I have considered the pre-bail report and the nature of the offence. Accused person is charged with murder with potential severe sentences if convicted. I am of the view that a bond of Kshs. 500,000/= with a surety of similar amount is reasonable in the circumstances. It is so ordered.
Court
Ruling delivered in Virtual platform
Mr. Migele for the accused. Appearing with Orimba
Mr. Langat – for IPOA
Ms. Ndiema for the state
Hon. A.K Ithuku
JUDGE
Mr. Migele
I request for a hearing date.
Court
Hearing on 21/09/2026.
Hon. A.K Ithuku
JUDGE
7 | Page MAKADARA CRIMINAL CASE NO. E007 OF 2026