Republic VS SIMON MWANGI MAINA ALIAS KING'ANG'I AND MUSINGI IVULI Republic VS SIMON MWANGI MAINA ALIAS KING'ANG'I AND MUSINGI IVULI

The two accused persons have applied to this court for release on bail primarily on three grounds:
That bail is a constitutional right under Article 41 (1) (h) of the Constitution
That they have a right to be presumed innocent until proven guilty and the Article 50 of the Constitution.
That the two are law abiding citizen and therefore not a flight risk.
The two accused persons were charged that on 2^nd October 2024 at Bee Center Umoja Two zone Nine area, Makadara Sub County within Nairobi County jointly with others not before court murdered Francis Oduor Omonyo alias JAHOME.
The prosecution is opposed to their release on bail and in support of that position they relied on an affidavit sworn by No. 85414 CPL FRED ONDUSO of DCI Buruburu.
The crux of the affidavit opposing bail is that the two accused persons are a flight risk and if released on bail they might never return face trial.
The prosecution also alleges that there are some accomplices of the accused who are still at large and if the two are released they may as well vanish never to be traced.
The prosecution has also raised the issue of severity of sentence should the accused person be found guilty of the charge that they face.
On behalf of the 1^st accused MS. MAINA Submitted that the accused has affixed abode and that at the time of the incident he operated a food eatery in Embakasi which business he is inclined to resume upon release.
MS. MAINA Further submitted that the 1^st accused will be able to attend court.
Counsel also urged this court to consider the plight of his client who is alleged to be suffering from high blood pressure and that he requires to undergo monthly checkups.
The 1^st accused further told this court that his brother-in-law is willing to stand surety for him and will ensure that he attends court if admitted to bail.
Counsel for the 2^nd accused also submitted that his client has a fixed abode at Kariobangi and he is willing to abide by the conditions that this court would grant for release on Bail.
MS. MATEO argued that since the accused enjoys the presumption of innocence under Article 50 of the Constitution his right to liberty should not be curtailed.
The court has considered the rival submissions by the counsel.
The duty of the prosecution in an application of this nature is to prove on a balance of probabilities that there are compelling reasons to deny bail.
Having carefully considered the Affidavit opposing bail, I am not inclined to agree with the prosecution that since there are accomplices on the run, the accused persons should not be granted bail.
To accept such a proposition would be to set a dangerous precedent. The accused persons have not been shown to have in anyway influenced the disappearance of the alleged accomplices.
The accomplices are not named in the affidavits thus the presumption is that they are only known to the investigator and the prosecution.
It would thus be a serious violation of the law to hold the accused persons on account of the disappearance of alleged accomplices who are unknown to them.
The duty to investigate the matter and arrest all culprits remains solely that of the prosecution thus the accused persons cannot be blamed by the prosecution for their inability to trace and arrest the alleged accomplices.
It would have been completely different had the prosecution presented evidence to show that the accused persons have either been directly involved in the disappearance of the wanted suspects or at least demonstrate some complicity on their part.
As it stands now the involvement of the accused persons in the disappearance of potential suspects remains merely speculative and a possible hypothesis which this court cannot rely on to deny bail.
The prosecution is simply apprehensive that these two accused persons might take flight but they have not demonstrated the basis of the fear. The fear must be treated just as that in the absence of any credible and actionable evidence of possibility to avoid the trial.
The emerging jurisprudence on the matter of bail is that it should not be denied on the basis of apprehension by the prosecution. See Dwight Sagaray and 3 others Vs Republic (2013) eKLR
The court should be inclined to grant bail as opposed to denial whenever an accused person is charged. See DANSON MGUNYA & ANOTHER VS. REPUBLIC 2010 eKLR.
The court is at liberty to prescribe terms that would mitigate the temptation to abscond and such terms must be reasonable so as not to render the grant of bail merely aspirational.
In this case I am not persuaded that the prosecution has established the risk of flight as a compelling reason for this court to deny the two accused persons bail.
It follows therefore that this court hereby admits the two accused persons to bail on the following terms:
Each of the accused persons shall be released on a bond of Kshs. 1000,000 plus 2 sureties of similar amount.
Each accused person shall provide details of his fixed abode.
Each accused person shall provide to the DR of this court contacts of at least one blood relative who may be reached by the state should the accused person be required to appear before the court.
The person whose contact is provided to the court shall avail a copy of his or her national identity card.
The accused persons shall not leave the jurisdiction of the court without leave of the court.
Each accused shall provide his mobile telephone contacts and he shall maintain the number so provided throughout the trial.
It is so ordered.