1. This ruling is on the release of the accused persons herein on bond.
2. The accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code that on 26/2/2025 at Umoja village, Diani location within Kwale County they killed Mohamed Ali Kiphuza alias Rasta.
3. When the accused persons were arraigned for plea taking on 2/4/2025, the case went before the High Court at Mombasa as this court was on leave. The learned prosecution counsel there informed the court that the they did not have the prosecution file from Kwale court and so they could not speak for their counterparts in Kwale. They however asked the court to call for a bail report.
4. Ms Barayan learned counsel for the accused persons, submitted on 2/4/2025 that the accused persons be released on bond as that is their right as provided for under article 49 of the Constitution. Learned counsel submitted that the accused persons had been in custody for more than a month as at that time, that they had fixed places of abode and no allegations of interference had been made against them.
5. Mr. Gonze, learned counsel for the victims informed the court that the victims were opposed to the release of the accused persons on bond for various reasons stated namely that the charges were grave, the accused persons were a flight risk as they were arrested while trying to flee, they were a threat to the family of the victims who live within the area. Learned counsel then asked that a bail report be made available.
6. In response, learned counsel for the accused persons submitted that the accused persons were not a flight risk and they were arrested from their home at midnight and they were accompanied to the police station by their parents.
7. The court called for a bail report in respect of the accused persons and also directed that if the prosecution had any objection to the release of the accused persons on bond then the same be filed. The court at a subsequent mention on 8/4/2025 granted the victims a chance to file any affidavits in objection to bond if they wished.
8. The matter came up on 5/5/2025 for the court to consider the bail reports which had been filed and make a ruling on release of the accused persons on bond, When the first bail report was filed, learned counsel for the accused persons said that they would not file any reply in rejoinder but entirely would rely on the reports.
9. Learned counsel for the victims informed the court that the victims were opposed to the accused person’s being released on bond and required more time to file an affidavit in opposition. They had in fact not complied with the court’s order to file affidavits to support their objection to the release of the accused persons on bond.
10. Learned counsel for the accused persons vehemently opposed any further delay on the determination of whether or not the accused persons would be released on bond noting that the victims had been given sufficient time to file their affidavits. The learned prosecution counsel submitted that they will wholly rely on the bail reports.
11. The court granted the victim’s request through their advocate for an extension of time to file their affidavits.
12. The victims subsequently filed two affidavits, one sworn by Saum Abdallah Nimatiko, the deceased’s mother and the other by Badi Suleiman Mwajirani, a son-in-law to the deceased both sworn on 8/5/2025. They were substantially in response to the first bail report denying that they had been involved in its preparation. They deposes that they had not been interviewed or stated some of the things indicated therein. They were vehemently opposed to the release of the accused persons on bond citing fears to their own safety and those of crucial witnesses. They also referred to an affidavit sworn on 10/3/2025 by the investigating officer PC Emmanuel Kimutai in support of an application to detain the accused persons, then suspects, pending further investigations in the matter in which the investigating officer had strongly objected to the release of the suspects on bond pending the investigations. The accused persons were subsequently charged with the present offence.
13. When the matter came up 19/5/2025 learned counsel for the accused persons submitted that she had received and considered the affidavits and the accused persons did not wish to respond to the same. That they entirely relied on the bail reports filed earlier which were indicative in all cases that the accused persons had strong community ties and so could be released on bond.
14. The main issue raised in the affidavits was that some of the representations made in the bail reports by the probation officer as coming from the victims were not correct. The most highly contested issue was that the family of the deceased were interviewed and gave their views. They agreed that Badi Suleiman Mwajirani, one of the deponents of the affidavits was interviewed by the probation officer but denied that what he gave were views of the family of the deceased.
15. The court asked for a supplementary bail report for each accused person and the same to include the views of the victims as requested in consideration of Article 50(7) of the Constitution and sections 4(2) and 9 of the Victims Protection Act (Cap. 79A) Laws of Kenya. The reports were filed in court on 1/7/2025 and learned counsel for the accused persons informed the court that they would rely on the reports as filed.
16. The court now has two bail reports in respect of each accused person and affidavits by representatives of the victims.
17. The prosecution has not made any representations on the issue of the release of the accused persons on bond either through submissions or through sworn affidavits by the investigating officer. In that case, it means that the prosecution has not made any objection to the release of the accused persons on bond.
18. The initial reports dated 7/4/2025 prepared by a probation officer from Mombasa Probation office recommended in respect of each accused person that he be released on lenient bond terms with alternative cash bail. The reports indicated that each of the accused persons has good community ties, his family was willing to secure bond/bail for him, that the investigating officer was not opposed to their release on favorable bond terms and did not report any possible threats to the accused persons if released on bond.
19. The recent supplementary bail report dated 30/6/2025 prepared by two probation officers from Kwale probation office recommends that the court while considering the terms of bond or bail should take into account the concerns raised by all the parties involved in the matter and of the victims as well as other factors such as the seriousness of the offence and the views of the investigating officer.
20. I have noted the strong objection by the victims to the release of the accused persons on bond through the sworn affidavits and their representations in the bail reports. They have raised various concerns. The ones I find most relevant to the consideration herein without jeopardizing the rights of the accused persons to a fair trial are first that some two suspects escaped and have not been apprehended and second that they are afraid of their safety and those of key witnesses given that they are all neighbours of the accused persons.
21. I have also noted from the two bail reports that the accused persons have good community ties with their nuclear and extended families who are ready and willing to ensure that they are released on bond.
22. The most outstanding issue in both reports is that there are serious conflicts arising from disputes over land boundaries in the area that have led to several murders being committed.
23. Article 49 of the Constitution of Kenya provides that an accused person who is waiting for the hearing and resolution of a criminal case against him is entitled to be released on bond. Release of the accused person on bond may only be denied if the prosecution establishes on a balance of probability that there are compelling reasons why such release should not occur. This is because the accused has in his favour the presumption of innocence as provided for under Article 50(2)(a) of the Constitution.
24. In this case, the prosecution and the defence both urge the court to rely on the bail reports in its determination of the issue of whether or not to release the accused persons on bond.
25. Section 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya provides for some of the factors the court may consider in a determination of whether or not an accused person should be released on bond as follows:
(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
a) the nature or seriousness of the offence;
b) the character, antecedents, associations and community ties of the accused person;
c) the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and
d) the strength of the evidence of his having committed the offence;
(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
b) should be kept in custody for his own protection.
26. The Judiciary Bail and Bond Policy Guidelines, 2015 paragraph 4.26(a) has expounded on this section by providing guidance on some of the reasons the court needs to consider in bail determination to be as follows:
a. That the accused person is likely to fail to attend court proceedings; or
b. That the accused person is likely to commit, or abet the commission of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.
follows:
27. The Guidelines provide further that the court should consider, as appropriate, the following additional factors in deciding whether to grant an accused person bail:
a. The period the accused person has already spent in custody since arrest.
b. The probable period of detention until the conclusion of the trial if the accused is not released on bail.
c. The reason or reasons for any delay in the conclusion of the trial and any role of the accused with regard to such delay.
d. Change of circumstances during the trial.
e. The maximum custodial sentence in case the accused person is convicted.
28. The foregoing factors have been considered and expounded in numerous decisions of the superior courts. They are considered non-exhaustive, meaning that circumstances may dictate the denial of bond provided they amount to a compelling reason.
29. That latest bail report indicates that there are fears that the accused persons are likely to interfere with witnesses in the case because they are close neighbours. The victims also expressed the same fears in their affidavits. There was no response to that information from the accused persons. In the case of Farah v Republic [2023] KECA 241 (KLR), the Court of Appeal endorsed the High Court holding in the case of Republic vs. Joktan Mayende & 3 Others [2012] eKLR where the High court while considering the issue of threat to witnesses stated:
“All that the law requires is that there is interference in the sense of influencing or compromising or inducing or terrifying or doing such other acts to a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. Interference with witnesses covers a wide range; it can be immediately on commission of the offence, during investigations, at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons. The descriptors of the kind of acts which amount to interference with witnesses are varied and numerous but it is the court which decides in the circumstances of each case if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.” (emphasis by underlining by this court.)
30. In view of the serious land conflicts in the area and the reports that several murders have taken place due to the disputes, the fact of witnesses being interfered with or even developing fear is real. I therefore find it to be a compelling reason to deny the accused persons bond at least at this stage until the witnesses who are likely to be fearful to testify have given their evidence.
31. For purposes of expediting the hearing of the said witnesses, it is hereby directed that the prosecution must prepare to present the said witnesses and prosecute its case until they are finished from the first date fixed for hearing and thereafter on a day-to-day basis on the days when this court sits for criminal cases until conclusion of the said witnesses unless otherwise prevented by circumstances that have to be determined by the court to be compelling to grant an adjournment. Once the said witnesses are completed or if the prosecution shall not have completed the evidence of the said witnesses within 120 days from the date of first hearing the accused persons shall be at liberty to renew their application for bail pending trial.
32. In the meantime, the accused persons shall remain in custody pending the hearing of the witnesses.
33. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 8th day of July 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
All accused persons present from Shimo la Tewa prison on the virtual platform.
Barayan (Ms) for the Accused persons.
Ngonze for the Victims.
M/s Vallerie for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
2. The accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code that on 26/2/2025 at Umoja village, Diani location within Kwale County they killed Mohamed Ali Kiphuza alias Rasta.
3. When the accused persons were arraigned for plea taking on 2/4/2025, the case went before the High Court at Mombasa as this court was on leave. The learned prosecution counsel there informed the court that the they did not have the prosecution file from Kwale court and so they could not speak for their counterparts in Kwale. They however asked the court to call for a bail report.
4. Ms Barayan learned counsel for the accused persons, submitted on 2/4/2025 that the accused persons be released on bond as that is their right as provided for under article 49 of the Constitution. Learned counsel submitted that the accused persons had been in custody for more than a month as at that time, that they had fixed places of abode and no allegations of interference had been made against them.
5. Mr. Gonze, learned counsel for the victims informed the court that the victims were opposed to the release of the accused persons on bond for various reasons stated namely that the charges were grave, the accused persons were a flight risk as they were arrested while trying to flee, they were a threat to the family of the victims who live within the area. Learned counsel then asked that a bail report be made available.
6. In response, learned counsel for the accused persons submitted that the accused persons were not a flight risk and they were arrested from their home at midnight and they were accompanied to the police station by their parents.
7. The court called for a bail report in respect of the accused persons and also directed that if the prosecution had any objection to the release of the accused persons on bond then the same be filed. The court at a subsequent mention on 8/4/2025 granted the victims a chance to file any affidavits in objection to bond if they wished.
8. The matter came up on 5/5/2025 for the court to consider the bail reports which had been filed and make a ruling on release of the accused persons on bond, When the first bail report was filed, learned counsel for the accused persons said that they would not file any reply in rejoinder but entirely would rely on the reports.
9. Learned counsel for the victims informed the court that the victims were opposed to the accused person’s being released on bond and required more time to file an affidavit in opposition. They had in fact not complied with the court’s order to file affidavits to support their objection to the release of the accused persons on bond.
10. Learned counsel for the accused persons vehemently opposed any further delay on the determination of whether or not the accused persons would be released on bond noting that the victims had been given sufficient time to file their affidavits. The learned prosecution counsel submitted that they will wholly rely on the bail reports.
11. The court granted the victim’s request through their advocate for an extension of time to file their affidavits.
12. The victims subsequently filed two affidavits, one sworn by Saum Abdallah Nimatiko, the deceased’s mother and the other by Badi Suleiman Mwajirani, a son-in-law to the deceased both sworn on 8/5/2025. They were substantially in response to the first bail report denying that they had been involved in its preparation. They deposes that they had not been interviewed or stated some of the things indicated therein. They were vehemently opposed to the release of the accused persons on bond citing fears to their own safety and those of crucial witnesses. They also referred to an affidavit sworn on 10/3/2025 by the investigating officer PC Emmanuel Kimutai in support of an application to detain the accused persons, then suspects, pending further investigations in the matter in which the investigating officer had strongly objected to the release of the suspects on bond pending the investigations. The accused persons were subsequently charged with the present offence.
13. When the matter came up 19/5/2025 learned counsel for the accused persons submitted that she had received and considered the affidavits and the accused persons did not wish to respond to the same. That they entirely relied on the bail reports filed earlier which were indicative in all cases that the accused persons had strong community ties and so could be released on bond.
14. The main issue raised in the affidavits was that some of the representations made in the bail reports by the probation officer as coming from the victims were not correct. The most highly contested issue was that the family of the deceased were interviewed and gave their views. They agreed that Badi Suleiman Mwajirani, one of the deponents of the affidavits was interviewed by the probation officer but denied that what he gave were views of the family of the deceased.
15. The court asked for a supplementary bail report for each accused person and the same to include the views of the victims as requested in consideration of Article 50(7) of the Constitution and sections 4(2) and 9 of the Victims Protection Act (Cap. 79A) Laws of Kenya. The reports were filed in court on 1/7/2025 and learned counsel for the accused persons informed the court that they would rely on the reports as filed.
16. The court now has two bail reports in respect of each accused person and affidavits by representatives of the victims.
17. The prosecution has not made any representations on the issue of the release of the accused persons on bond either through submissions or through sworn affidavits by the investigating officer. In that case, it means that the prosecution has not made any objection to the release of the accused persons on bond.
18. The initial reports dated 7/4/2025 prepared by a probation officer from Mombasa Probation office recommended in respect of each accused person that he be released on lenient bond terms with alternative cash bail. The reports indicated that each of the accused persons has good community ties, his family was willing to secure bond/bail for him, that the investigating officer was not opposed to their release on favorable bond terms and did not report any possible threats to the accused persons if released on bond.
19. The recent supplementary bail report dated 30/6/2025 prepared by two probation officers from Kwale probation office recommends that the court while considering the terms of bond or bail should take into account the concerns raised by all the parties involved in the matter and of the victims as well as other factors such as the seriousness of the offence and the views of the investigating officer.
20. I have noted the strong objection by the victims to the release of the accused persons on bond through the sworn affidavits and their representations in the bail reports. They have raised various concerns. The ones I find most relevant to the consideration herein without jeopardizing the rights of the accused persons to a fair trial are first that some two suspects escaped and have not been apprehended and second that they are afraid of their safety and those of key witnesses given that they are all neighbours of the accused persons.
21. I have also noted from the two bail reports that the accused persons have good community ties with their nuclear and extended families who are ready and willing to ensure that they are released on bond.
22. The most outstanding issue in both reports is that there are serious conflicts arising from disputes over land boundaries in the area that have led to several murders being committed.
23. Article 49 of the Constitution of Kenya provides that an accused person who is waiting for the hearing and resolution of a criminal case against him is entitled to be released on bond. Release of the accused person on bond may only be denied if the prosecution establishes on a balance of probability that there are compelling reasons why such release should not occur. This is because the accused has in his favour the presumption of innocence as provided for under Article 50(2)(a) of the Constitution.
24. In this case, the prosecution and the defence both urge the court to rely on the bail reports in its determination of the issue of whether or not to release the accused persons on bond.
25. Section 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya provides for some of the factors the court may consider in a determination of whether or not an accused person should be released on bond as follows:
(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
a) the nature or seriousness of the offence;
b) the character, antecedents, associations and community ties of the accused person;
c) the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and
d) the strength of the evidence of his having committed the offence;
(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
b) should be kept in custody for his own protection.
26. The Judiciary Bail and Bond Policy Guidelines, 2015 paragraph 4.26(a) has expounded on this section by providing guidance on some of the reasons the court needs to consider in bail determination to be as follows:
a. That the accused person is likely to fail to attend court proceedings; or
b. That the accused person is likely to commit, or abet the commission of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.
follows:
27. The Guidelines provide further that the court should consider, as appropriate, the following additional factors in deciding whether to grant an accused person bail:
a. The period the accused person has already spent in custody since arrest.
b. The probable period of detention until the conclusion of the trial if the accused is not released on bail.
c. The reason or reasons for any delay in the conclusion of the trial and any role of the accused with regard to such delay.
d. Change of circumstances during the trial.
e. The maximum custodial sentence in case the accused person is convicted.
28. The foregoing factors have been considered and expounded in numerous decisions of the superior courts. They are considered non-exhaustive, meaning that circumstances may dictate the denial of bond provided they amount to a compelling reason.
29. That latest bail report indicates that there are fears that the accused persons are likely to interfere with witnesses in the case because they are close neighbours. The victims also expressed the same fears in their affidavits. There was no response to that information from the accused persons. In the case of Farah v Republic [2023] KECA 241 (KLR), the Court of Appeal endorsed the High Court holding in the case of Republic vs. Joktan Mayende & 3 Others [2012] eKLR where the High court while considering the issue of threat to witnesses stated:
“All that the law requires is that there is interference in the sense of influencing or compromising or inducing or terrifying or doing such other acts to a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. Interference with witnesses covers a wide range; it can be immediately on commission of the offence, during investigations, at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons. The descriptors of the kind of acts which amount to interference with witnesses are varied and numerous but it is the court which decides in the circumstances of each case if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused.” (emphasis by underlining by this court.)
30. In view of the serious land conflicts in the area and the reports that several murders have taken place due to the disputes, the fact of witnesses being interfered with or even developing fear is real. I therefore find it to be a compelling reason to deny the accused persons bond at least at this stage until the witnesses who are likely to be fearful to testify have given their evidence.
31. For purposes of expediting the hearing of the said witnesses, it is hereby directed that the prosecution must prepare to present the said witnesses and prosecute its case until they are finished from the first date fixed for hearing and thereafter on a day-to-day basis on the days when this court sits for criminal cases until conclusion of the said witnesses unless otherwise prevented by circumstances that have to be determined by the court to be compelling to grant an adjournment. Once the said witnesses are completed or if the prosecution shall not have completed the evidence of the said witnesses within 120 days from the date of first hearing the accused persons shall be at liberty to renew their application for bail pending trial.
32. In the meantime, the accused persons shall remain in custody pending the hearing of the witnesses.
33. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 8th day of July 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
All accused persons present from Shimo la Tewa prison on the virtual platform.
Barayan (Ms) for the Accused persons.
Ngonze for the Victims.
M/s Vallerie for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE