REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL CASE NO E002 OF 2026
REPUBLIC
VERSUS
PETER KAHUGU GAITHA..……………..…………………………………ACCUSED
RULING
INTRODUCTION
1. The Accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya).
2. The Prosecution opposed his release on bail/bond. On 11 th March 2026, it filed an Affidavit of Opposing Bail/Bond. The same was sworn by the Investigating Officer No 77081 CPL Erickson Nyawega on 10 th March 2026. It filed its Written Submissions dated 8 th May 2026 on even date. The Accused person’s Written Submissions were dated and filed on 14 th May 2026.
3. The Probation Office also filed its Pre-Bail Report dated 12 th May 2026 on 14 th May 2026. The said Pre-Bail Report was by Benson Gathegea.
LEGAL ANALYSIS
4. The Investigating Officer averred that although the Accused person had a right to be released on bail/bond, that right under Article 49(1)(h) of the Constitution of Kenya, 2010 was not absolute right and that the same was a matter of discretion by the court.
5. He contended that the Accused person knew the witnesses who saw him assaulting his wife (hereinafter referred to as “the deceased”) on the material night of 18 th and 19 th December 2025. He was apprehensive that there would be interference and intimidation of the witnesses with the aim of preventing them to testify in court if the Accused person was released on bail/bond. He was emphatic that the Prosecution had a strong case and there was a high probability that it would secure a conviction.
6. He further averred that the Accused person had no fixed abode or any known or familial or economic ties should he be released on bail/bond making it difficult for him to be traced. He further stated that it was prudent to detain the Accused person to maintain peace and order and to avoid potential revenge attacks against him.
7. He urged this court to find the aforesaid were compelling reasons to decline the Accused person’s application for bail/bond application.
8. The Prosecution reiterated the averments of the said Investigation Officer and relied on the cases of Republic vs Joseph Kuria Irungu & Another [2018] eKLR to support his argument that the Accused person was a flight risk. In the said case, the court therein held that lack of no known assets in a country, no fixed abode, lack of deep emotional, economic and occupation ties were sufficient to demonstrate that an accused person was a flight risk.
9. It submitted that the Accused person had already been given the Bundle and hence he was likely to interfere with witnesses as he knew who the witnesses were. In this regard, it relied on the case of Republic vs Fredrick Ole Leliman & 4 Others [2016] eKLR where the court therein observed that self-preservation was a natural reaction for human beings and the same could take the form of suppressing witnesses.
10. It referred this court to the cases of Republic vs Mohammed Omar & 6 Others [2010] eKLR and Republic vs Margaret Nyaguthii Kimeu [2013] eKLR where the court held that the severity of the sentence was a factor to be taken into account when considering a bail/bond application. In the case of Republic vs Margaret Nyaguthii Kimeu (Supra), the court therein considered the severity of the sentence and strength of the prosecution’s.
11. It also placed reliance on the case of Republic vs Milton Kabulit & 6 Others [2011] eKLR where the court therein held that granting of bail/bond to a person who had been charged with a capital offence was not justifiable unless the accused person was a minor. It urged this court to note the gruesome nature of the deceased’s murder and find it as a compelling reason not to grant the Accused person bail/bond.
12. On his part, the Accused person submitted that he had a constitutional right under Article 49(1)(h) of the Constitution of Kenya to be granted bail/bond unless there were compelling reasons that would mitigate against the granting of the same. He pointed out that the Prosecution had not demonstrated that he would abscond or how he would interfere with the witnesses.
13. He referred to the case of Republic vs Edwin Odiwuor Otieno & 2 Others [2021] eKLR where the court held that merely knowing witnesses was sufficient to demonstrate that an accused person would interfere with witnesses. He added that there had to be proof of interference with circumstances being set out which the court would determine if the same amounted to interference aimed at impeding or perverting the course of justice as was held in the case of Republic vs Joktan Mayende & 3 Others [2012] eKLR .
14. He contended that the court had inherent powers and discretion to grant bail/bond and to make orders regarding the movements of an accused person and interactions with witnesses. He , therefore, urged the court to grant him bail/bond.
15. According to the said Pre-Bail Report, the Accused person’s family had no known criminal history and that the Accused person had a strong social support system with stable social connections. His aunt had expressed her willingness to stand surety for him and to ensure that he attended court.
16. The said Pre-Bail Report indicated that the Accused person was employed prior to the incident and that he had a permanent home in Giachuma Village within Keini East Sub-County where he had lived for fifteen (15) years after relocating from Nyandarua District.
17. The said Pre- Bail Report also indicated that the Accused person appeared to understand the seriousness of the Charge and the weight of the personal and legal consequences if he was convicted.
18. The deceased’s family was said to be still bitter and emotionally affected by her death as she had ignored their advise for her to leave the union with the Accused person.
19. The local administration did not consider him as a flight risk as he had a fixed abode and he was well known within the community. However, the local administration was apprehensive that the community could avenge the deceased’s death. It pointed out that the Investigating Officer had recommended that the bail/bond application be deferred until such time that the environment stopped being hostile.
20. The Probation Office opined that the Accused person was not a flight risk as he had an aunty who was offering him both moral and financial support. It recommended that in the event the court was to grant him bail/bond terms, then he should reside away from the community, report to the nearest police station regularly as directed by the court and that he have no contact with the witnesses during the pendency of the case.
21. Notably, the Accused person had a fixed abode having lived in his house for the last fifteen (15) years. The fact that the witnesses saw him commit the offence was not a reason to deny him bail/bond. The fact that the Prosecution had a strong case or the sentence the Accused person would suffer if he was convicted was severe was also not sufficient reason to deny him bail/bond.
22. Indeed, Article 50(2)(a) of the Constitution of Kenya provides that every person was presumed guilty until proven guilty. The duty of determining whether a case was strong or not or if a conviction would ensue lay with the court. The Prosecution could not be the accuser, investigator and the jury at the same time. Its duty was to tender the evidence in support of its case which the court would evaluate and come to its own independent conclusion.
23. The Prosecution did not provide any evidence to show that the Accused person would interfere with the witnesses. Merely knowing witnesses was not a ground to deny an accused person bail. Denying an accused person on this ground or on the ground that the Prosecution had a strong case or that the sentence would be severe would amount to discrimination. The fact of severity of sentence, the gruesome nature of the offence or remote risk of flight risk could be mitigated by imposing stringent bail/bond terms.
24. The above notwithstanding, this court noted that whereas the local administration did not consider the Accused person a flight risk, it was apprehensive that the community was still very vengeful and could harm him. The risk of revenge attacks by a community was a solid factor for declining an application for bail/bond.
25. While the Accused person had a surety and strong social networks, it was evident that he could only return to the community after it had ceased being hostile. There was no indication that his aunt was willing to host him during this period other than to stand surety for him. In the absence of proof of another alternative abode, this court agreed with the Investigating Officer that it was prudent to defer the granting of bail/bond until the hostilities had ceased.
DISPOSITION
26. Accordingly, the upshot of this court’s decision was that the Accused person’s application for bail/bond be and is hereby deferred. The Accused person was at liberty to file a fresh application for bail/bond at a later stage once it was demonstrated that the hostilities on the ground had ceased and/or that he had secured an alternative abode to live in during the pendency of the case.
27. It is so ordered.
DATED and DELIVERED at NANYUKI this 22 nd day of May 2026
J. KAMAU
JUDGE
HCCRC NO E002 OF 20261
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL CASE NO E002 OF 2026
REPUBLIC
VERSUS
PETER KAHUGU GAITHA..……………..…………………………………ACCUSED
RULING
INTRODUCTION
1. The Accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya).
2. The Prosecution opposed his release on bail/bond. On 11 th March 2026, it filed an Affidavit of Opposing Bail/Bond. The same was sworn by the Investigating Officer No 77081 CPL Erickson Nyawega on 10 th March 2026. It filed its Written Submissions dated 8 th May 2026 on even date. The Accused person’s Written Submissions were dated and filed on 14 th May 2026.
3. The Probation Office also filed its Pre-Bail Report dated 12 th May 2026 on 14 th May 2026. The said Pre-Bail Report was by Benson Gathegea.
LEGAL ANALYSIS
4. The Investigating Officer averred that although the Accused person had a right to be released on bail/bond, that right under Article 49(1)(h) of the Constitution of Kenya, 2010 was not absolute right and that the same was a matter of discretion by the court.
5. He contended that the Accused person knew the witnesses who saw him assaulting his wife (hereinafter referred to as “the deceased”) on the material night of 18 th and 19 th December 2025. He was apprehensive that there would be interference and intimidation of the witnesses with the aim of preventing them to testify in court if the Accused person was released on bail/bond. He was emphatic that the Prosecution had a strong case and there was a high probability that it would secure a conviction.
6. He further averred that the Accused person had no fixed abode or any known or familial or economic ties should he be released on bail/bond making it difficult for him to be traced. He further stated that it was prudent to detain the Accused person to maintain peace and order and to avoid potential revenge attacks against him.
7. He urged this court to find the aforesaid were compelling reasons to decline the Accused person’s application for bail/bond application.
8. The Prosecution reiterated the averments of the said Investigation Officer and relied on the cases of Republic vs Joseph Kuria Irungu & Another [2018] eKLR to support his argument that the Accused person was a flight risk. In the said case, the court therein held that lack of no known assets in a country, no fixed abode, lack of deep emotional, economic and occupation ties were sufficient to demonstrate that an accused person was a flight risk.
9. It submitted that the Accused person had already been given the Bundle and hence he was likely to interfere with witnesses as he knew who the witnesses were. In this regard, it relied on the case of Republic vs Fredrick Ole Leliman & 4 Others [2016] eKLR where the court therein observed that self-preservation was a natural reaction for human beings and the same could take the form of suppressing witnesses.
10. It referred this court to the cases of Republic vs Mohammed Omar & 6 Others [2010] eKLR and Republic vs Margaret Nyaguthii Kimeu [2013] eKLR where the court held that the severity of the sentence was a factor to be taken into account when considering a bail/bond application. In the case of Republic vs Margaret Nyaguthii Kimeu (Supra), the court therein considered the severity of the sentence and strength of the prosecution’s.
11. It also placed reliance on the case of Republic vs Milton Kabulit & 6 Others [2011] eKLR where the court therein held that granting of bail/bond to a person who had been charged with a capital offence was not justifiable unless the accused person was a minor. It urged this court to note the gruesome nature of the deceased’s murder and find it as a compelling reason not to grant the Accused person bail/bond.
12. On his part, the Accused person submitted that he had a constitutional right under Article 49(1)(h) of the Constitution of Kenya to be granted bail/bond unless there were compelling reasons that would mitigate against the granting of the same. He pointed out that the Prosecution had not demonstrated that he would abscond or how he would interfere with the witnesses.
13. He referred to the case of Republic vs Edwin Odiwuor Otieno & 2 Others [2021] eKLR where the court held that merely knowing witnesses was sufficient to demonstrate that an accused person would interfere with witnesses. He added that there had to be proof of interference with circumstances being set out which the court would determine if the same amounted to interference aimed at impeding or perverting the course of justice as was held in the case of Republic vs Joktan Mayende & 3 Others [2012] eKLR .
14. He contended that the court had inherent powers and discretion to grant bail/bond and to make orders regarding the movements of an accused person and interactions with witnesses. He , therefore, urged the court to grant him bail/bond.
15. According to the said Pre-Bail Report, the Accused person’s family had no known criminal history and that the Accused person had a strong social support system with stable social connections. His aunt had expressed her willingness to stand surety for him and to ensure that he attended court.
16. The said Pre-Bail Report indicated that the Accused person was employed prior to the incident and that he had a permanent home in Giachuma Village within Keini East Sub-County where he had lived for fifteen (15) years after relocating from Nyandarua District.
17. The said Pre- Bail Report also indicated that the Accused person appeared to understand the seriousness of the Charge and the weight of the personal and legal consequences if he was convicted.
18. The deceased’s family was said to be still bitter and emotionally affected by her death as she had ignored their advise for her to leave the union with the Accused person.
19. The local administration did not consider him as a flight risk as he had a fixed abode and he was well known within the community. However, the local administration was apprehensive that the community could avenge the deceased’s death. It pointed out that the Investigating Officer had recommended that the bail/bond application be deferred until such time that the environment stopped being hostile.
20. The Probation Office opined that the Accused person was not a flight risk as he had an aunty who was offering him both moral and financial support. It recommended that in the event the court was to grant him bail/bond terms, then he should reside away from the community, report to the nearest police station regularly as directed by the court and that he have no contact with the witnesses during the pendency of the case.
21. Notably, the Accused person had a fixed abode having lived in his house for the last fifteen (15) years. The fact that the witnesses saw him commit the offence was not a reason to deny him bail/bond. The fact that the Prosecution had a strong case or the sentence the Accused person would suffer if he was convicted was severe was also not sufficient reason to deny him bail/bond.
22. Indeed, Article 50(2)(a) of the Constitution of Kenya provides that every person was presumed guilty until proven guilty. The duty of determining whether a case was strong or not or if a conviction would ensue lay with the court. The Prosecution could not be the accuser, investigator and the jury at the same time. Its duty was to tender the evidence in support of its case which the court would evaluate and come to its own independent conclusion.
23. The Prosecution did not provide any evidence to show that the Accused person would interfere with the witnesses. Merely knowing witnesses was not a ground to deny an accused person bail. Denying an accused person on this ground or on the ground that the Prosecution had a strong case or that the sentence would be severe would amount to discrimination. The fact of severity of sentence, the gruesome nature of the offence or remote risk of flight risk could be mitigated by imposing stringent bail/bond terms.
24. The above notwithstanding, this court noted that whereas the local administration did not consider the Accused person a flight risk, it was apprehensive that the community was still very vengeful and could harm him. The risk of revenge attacks by a community was a solid factor for declining an application for bail/bond.
25. While the Accused person had a surety and strong social networks, it was evident that he could only return to the community after it had ceased being hostile. There was no indication that his aunt was willing to host him during this period other than to stand surety for him. In the absence of proof of another alternative abode, this court agreed with the Investigating Officer that it was prudent to defer the granting of bail/bond until the hostilities had ceased.
DISPOSITION
26. Accordingly, the upshot of this court’s decision was that the Accused person’s application for bail/bond be and is hereby deferred. The Accused person was at liberty to file a fresh application for bail/bond at a later stage once it was demonstrated that the hostilities on the ground had ceased and/or that he had secured an alternative abode to live in during the pendency of the case.
27. It is so ordered.
DATED and DELIVERED at NANYUKI this 22 nd day of May 2026
J. KAMAU
JUDGE
HCCRC NO E002 OF 20261