'
The applicant/ accused has been charged with murder contrary to Section 203 as read with Section 204 of the Penal code.
The particulars read :-
EMMANUEL NDALI alias KILLER : On the night of 22 nd March 2022 at Mihango area in Kayole Embakasi Sub- County within Nairobi County murdered THOMAS MUEMA MATATA alias KAZEE .
The accused denied the particulars of the information.
The Applicant further filed his application vide Notice of Motion dated 8/12/2023 seeking orders that :-
The Hon. Court to admit the accused to bail or in the alternative executes a bond for his release from custody pending hearing and determination of his trial.
The applicant be discharged from custody pending hearing and determination of this case.
The application is brought on GROUNDS THAT :-
The accused was arraigned in court on 7/4/2022 when he pleaded not guilty to the charge of murder.
That the offence is bailable and there is no compelling reason for his continued detention.
The accused has a constitutional right to be admitted to bail and /or bond on reasonable conditions. That he is a Kenyan citizen and was working as a mason within Nairobi County before his arrest. He is also a family man with 3 children of tender years, the children suffer physically and psychologically following his confinement.
That the accused’s wife does not work and solely relies on him, his extended family also relies on him to assist the family and siblings.
The accused will not interfere with investigations, witnesses or victims, further those victims, witnesses or investigators have not deponed to having been threatened or unduly influenced by the accused.
The accused is not a flight risk and has a fixed abode at his ancestral home where he intends to stay with his family.
The accused earns approximately Ksh15, 000/= salary and prays for reasonable bail terms. He is willing to comply with any bail terms the court may impose.
The applicant filed his supporting affidavit and reiterates the ground of the application .
THE ACCUSED SUPPORTING AFFIDAVIT
He depones that he is not a flight risk and he will attend all court sessions as and when required. Further that he is advised by counsel which he takes to be true that he has a right to fair trial which entails the right to be presumed innocent until proved guilty.
He has always cooperated with investigators and is willing to attend court to answer to any charges brought against him at such time and date the court may direct.
REPLYING AFFIDAVIT .
The prosecution filed the affidavit of No 92262 CPL Sabian Odongo of Kayole DCI in Nairobi County dated 3/10/2022 in response to the application.
The prosecution’s case is that the incident occurred in the full glare of two witnesses, the neighbour and accused’s mutual friend. That the witnesses are known to the accused and the investigators are apprehensive that he is likely to interfere with witnesses .The accused has knowledge of the witnesses identity, place of residence and occupation.
Further that the accused is a casual labourer and he keeps moving from one location to another in search of opportunities. These are not necessarily opportunities within Nairobi.
That accused is a flight risk and does not have a fixed abode and there is a compelling reason to deny the accused body.
THE PREBAIL REPORT .
The probation and aftercare service filed its report on 2/5/2025 on the accused’s eligibility to bond.
The report indicates that bail is not feasible. The probation report cites perceived fear of witness interference from the deceased family and that the accused family is divided on his release on bond. Also, that the accused does not have a fixed abode and rarely goes to his rural home . The accused is not known in his rural home.
Brief background of the accused is that :The accused was born in the year 1991 in Machakos County , he was married for 6 years and is blessed with two children born in 2017 and 2018.
The accused separated with his wife and later cohabited with one Lynette Adhiambo. The accused did not provide contact for the two and claimed that his estranged wife relocated to her home village while Lynette Adhiambo disappeared after his arrest.
The accused indulges in alcohol, smokes cigarettes and bhang .He was also intoxicated at the time of the offence .He has not been through the criminal justice system and no bail history was established.
With regard to this case, the accused acknowledged the gravity of the offence and the severity of the sentence, he prays for lenient bail terms. The family seems not to comprehend the severity of the offence.
The accused family views are also on record. The family was conflicted over the his release, his sister wanted the title deed to be used to secure his release, the accused brother adamantly declined asking what if, the accused disappears and what would happen to them.
The accused’s brother also claimed that he had not set his eyes on the accused since their father’s funeral. He rarely went home and the accused did not have a house.
The only semblance of a fixed abode could be his rural home.
The family was advised to discuss the issue and give feedback and also provide contacts of the local administration but no report was brought. The Probation Officer read this as demonstrating their hesitation to engage the local administration in their issues. Further, the accused family seems not to comprehend the severity of the offence.
The victim’s view was represented by the family of the late Thomas Muema. The deceased was married and had 2 children. He had been a freelance mason and his brothers have assumed parental responsibility of the young family.
The deceased’s mother is still traumatized and sought to be excused from the interview. That deceased father though devastated is optimistic that his death will not be in vain and the family will get justice.
The accused was the deceased friend and the accused family had reached out and arranged for a meeting but went silent on the issue.
The deceased’s father fears that he may be harmed. That he identified the accused to the police. His brother-in-law was also with him during the incidence and is a key witness in the case. That the accused release presence may jeopardize the family’s security.
Allegations were also made on how he killed someone else before thus his alias name ‘ Killer ’.
WRITTEN SUBMISSIONS
PROSECUTION’S SUBMISSIONS
The prosecution identified three compelling reasons to deny the accused bond. That the accused is a flight risk due to lack of fixed abode and weak family ties. Substantial risk of witness interference and intimidation and victim family’s interference.
That the Probation Officers report corroborates the replying affidavit on the fact that the accused lacks a fixed abode. The accused rental residence is in Mlango where he had lived for two years prior to the offence and the residence is likely to have a new tenant.
The accused rarely visited his rural home in Machakos prior to the arrest and his brother had not seen him since his father’s funeral.
The accused family is divided on whether to support his release, his brother fiercely opposed proving lack of familial consensus.
The prosecution refers to the case of Githinji -Vs- Republic Criminal Revision E017 of 2023 and urged the court that the circumstances undermine assurance of compliance with bail terms.
Further that the deceased brother was forced to relocate from Mihango due to fear of retaliation and that the threat is not speculative.
The accused socialized with witnesses on the night of the murder and his violent tendencies and brutal stabbing heightened concerns that he may seek to silence them.
Protection of the prosecution witnesses is paramount in securing justice for the deceased. The prosecution refers to the case of Republic –Vs- Joktan Mayende on ground of witness interference to decline bail.
Lastly that the deceased family has suffered irreparable loss, a young father of two and has left widow children and parents in profound grief. The deceased father has placed hope in the court for justice.
The family fears that granting bail would compound their anguish and undermine trust in judicial process. Their opposition is a legitimate consideration for denying bail. The prosecution relies on the case of Republic –Vs- Fredrick Ole Leliman & 4 others (2016) eklr where multiple affidavits sworn by interested persons opposing bail were recognized by the court.
The accused submissions were not on record at the time of writing the Ruling on Bail/Bond.
Analysis & Determination.
Bail pending trial 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 .
The burden of proof is on the prosecution to prove compelling reasons to limit the right to bond under Article 49 of the Constitution.
The court exercises discretion on the application but is bound by the law.
Section 123A of the Criminal Procedure Code lists compelling reasons for consideration to include:
(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 fulfillment 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—
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;
Should be kept in custody for his own protection.
The general principles for consideration as per the Judiciary Bail & Bond Policy Guidelines are listed as: The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty. The strength of the prosecution case. Character and antecedents of the accused person. The failure of the accused person to observe bail or bond terms. Likelihood of interfering with witnesses. The need to protect the victim or victims of the crime. The relationship between the accused person and potential witnesses. Child offenders. The accused person is a flight risk. Whether accused person is gainfully employed. Public order, peace or security. Protection of the accused person. See, Republic v Richard David Alden [2016] eKLR
I have considered the application and parties represented views on the accused application for bail.
The issue for determination is :-
Whether the accused will turn up for trial if he is released .
Whether the witnesses would be threatened .
The accused case is that he will reside in his rural home at Machakos. He was a mason and urges that his family depends on him, his children are destitute and his wife does not work. From the report, the accused sister supports his release and is willing to assist him using the family land.
However, the family is conflicted and the Accused person’s brother would not want the land title to be used in fear that the accused will abscond. The probation report also indicates that the accused is not known in the rural home which he rarely visits.
Further that details and contacts of the area local administration and community could not be obtained. The accused’s family seem not to be committed to involve the local administration.
The main purpose of bail is for the accused to turn up. All circumstances must point towards this assurance that he will attend court.
Family and local administration play a crucial role in bail terms. The accused close relation provide proof of competent sureties and assist in compliance of bond terms by ensuring he turns up and being accountable to the court when he absconds.
In Republic -Vs- James Kiarie Mutungei [2017] eKLR Nyakundi J defined bail and further emphasized the place of competent surety. That :
“ Bail in our criminal justice system is the security given for the release of an accused person detained in custody pending trial or appeal furnished by signing a personal bond or a surety signing a guarantee of ensuring his attendance before any court as required and specified .”
Section 124 ,125 and 127 of the Criminal Procedure Code speak to the process and import of sufficient security & surety.
Courts have held that absconding is heightened in serious offences which also carry severe penalties .In the case of Criminal Application No. 319 of 2002 Priscilla Jemutai Kolongei vs. Republic (unreported):, the court held that :-
“However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive. “See page 3 of the decision.
Also see Jonathan Kyalo Mutuku v Republic [2021] eKLR citing S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August 2017) & S v Hudson 1980 (4) SA 145 (D) 146 in the following terms;
“The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.”
In Jonathan Kyalo Mutuku, the court found that the issue of being a flight risk is pertinent. . However, it is a matter that can be addressed by other means when settling the terms and conditions of bail/bond, if the court is inclined to grant bond/bail to the accused.
In such cases stringent terms are imposed as a matter of course to mitigate these risks. In the case of REPUBLIC -Vs- DWIGHT SAGARAY & OTHERS Cr.Case. No. 61 of 2012 the court was of the view that the answer to lack of abode is to give stringent terms of release on bail. The accused was a Venezuelan citizen and was claimed to be a flight risk. In Jonathan Kyalo Mutuku, the court also found that the issue of being a flight risk is pertinent. . However, it is a matter that can be addressed by other means when settling the terms and conditions of bail/bond, if the court is inclined to grant bail/bond to the accused.
Such terms are supervisory in nature and ordinarily include reporting to the area administration and/or police station and restricting the accused movement until the matter is determined .
The rule is that each case must be determined according to pertinent facts. The court must also balance the accused right to and presumption of innocence during trial with the interests of the administration of justice which must not be prejudiced .
In the case of Republic -Vs- Mbiti Munguti [2020] eKLR , the High Court held that :-
“The discretion to grant bail and set the conditions rests with the court. In exercising its discretion, the court must seek to strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of justice, the court will lean in favour of liberty and grant bail where possible, provided the interests of justice will not be prejudiced by this.”
Further that:
“..from the Thesaurus meaning of compelling reasons the court would consider any fact or circumstances brought to its attention by the prosecution which would convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the accused will attend trial.”
See paragraph 10 in the case of Republic -Vs- Mbiti Munguti [2020] eKLR. Also see George Madegwa -Vs- Republic
In this case, the assurance that the accused will turn up for trial is diminished considering the difficulties to get family support and lack of local administration contact explained in the Prebail report . The accused might not be traced and the court might not get a reliable person or local administration to assist in holding him accountable.
Further, personal recognizance cannot apply in the matter considering the gravity of the offence and compelling grounds in the case.
Ability to comply with the courts bond terms must be demonstrated.
I have also considered other grounds in the replying affidavit. That there is threat of witness interference and that offence occurred in view of witnesses lined to testify in the case. The accused father points out that the accused brother in law who was present during the situation and who had socialized with the accused on the date of the offence .The deceased father also fears for his security and claims that he identified the accused to the police .
The Oxford dictionaries defines compelling reasons as:
‘ compelling – something so grieving, so strong, so convincing and undeniable.’
Threat of witnesses should not be speculative, instead, it must be perceived with a real likelihood that it will occur in the case . See R. V. Dwight Sagaray & 4 others , 2013 eKLR , where the court stated that: -
“For the prosecution to succeed in persuading the court on this criteria, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect, incriminating communication between the accused and witnesses; close familiar relationship between the accused and witnesses among others.”
Again, each case is determined in its circumstances. The prosecution’s grounds have been corroborated by the victim’s fears reflected in the probation report which remain uncontested.
I find that the prosecution proved compelling reasons and that the application is to be declined at this stage.
DISPOSITION
From the record, the court has taken the evidence of 1 witness and the accused was arraigned in the year 2022. Considering the age of the matter it is essential that the trial be expedited. The accused may also lodge his application when circumstances change after the neighbour and close friend testify.
Further mention for Directions 10/11/2025
RULING DELIVERED SIGNED & DATED IN OPEN COURT AT CRIMINAL DIVISION-NAIROBI THIS 9/10/2025 VIRTUALLY/PHYSICALLY.
'
The applicant/ accused has been charged with murder contrary to Section 203 as read with Section 204 of the Penal code.
The particulars read :-
EMMANUEL NDALI alias KILLER : On the night of 22 nd March 2022 at Mihango area in Kayole Embakasi Sub- County within Nairobi County murdered THOMAS MUEMA MATATA alias KAZEE .
The accused denied the particulars of the information.
The Applicant further filed his application vide Notice of Motion dated 8/12/2023 seeking orders that :-
The Hon. Court to admit the accused to bail or in the alternative executes a bond for his release from custody pending hearing and determination of his trial.
The applicant be discharged from custody pending hearing and determination of this case.
The application is brought on GROUNDS THAT :-
The accused was arraigned in court on 7/4/2022 when he pleaded not guilty to the charge of murder.
That the offence is bailable and there is no compelling reason for his continued detention.
The accused has a constitutional right to be admitted to bail and /or bond on reasonable conditions. That he is a Kenyan citizen and was working as a mason within Nairobi County before his arrest. He is also a family man with 3 children of tender years, the children suffer physically and psychologically following his confinement.
That the accused’s wife does not work and solely relies on him, his extended family also relies on him to assist the family and siblings.
The accused will not interfere with investigations, witnesses or victims, further those victims, witnesses or investigators have not deponed to having been threatened or unduly influenced by the accused.
The accused is not a flight risk and has a fixed abode at his ancestral home where he intends to stay with his family.
The accused earns approximately Ksh15, 000/= salary and prays for reasonable bail terms. He is willing to comply with any bail terms the court may impose.
The applicant filed his supporting affidavit and reiterates the ground of the application .
THE ACCUSED SUPPORTING AFFIDAVIT
He depones that he is not a flight risk and he will attend all court sessions as and when required. Further that he is advised by counsel which he takes to be true that he has a right to fair trial which entails the right to be presumed innocent until proved guilty.
He has always cooperated with investigators and is willing to attend court to answer to any charges brought against him at such time and date the court may direct.
REPLYING AFFIDAVIT .
The prosecution filed the affidavit of No 92262 CPL Sabian Odongo of Kayole DCI in Nairobi County dated 3/10/2022 in response to the application.
The prosecution’s case is that the incident occurred in the full glare of two witnesses, the neighbour and accused’s mutual friend. That the witnesses are known to the accused and the investigators are apprehensive that he is likely to interfere with witnesses .The accused has knowledge of the witnesses identity, place of residence and occupation.
Further that the accused is a casual labourer and he keeps moving from one location to another in search of opportunities. These are not necessarily opportunities within Nairobi.
That accused is a flight risk and does not have a fixed abode and there is a compelling reason to deny the accused body.
THE PREBAIL REPORT .
The probation and aftercare service filed its report on 2/5/2025 on the accused’s eligibility to bond.
The report indicates that bail is not feasible. The probation report cites perceived fear of witness interference from the deceased family and that the accused family is divided on his release on bond. Also, that the accused does not have a fixed abode and rarely goes to his rural home . The accused is not known in his rural home.
Brief background of the accused is that :The accused was born in the year 1991 in Machakos County , he was married for 6 years and is blessed with two children born in 2017 and 2018.
The accused separated with his wife and later cohabited with one Lynette Adhiambo. The accused did not provide contact for the two and claimed that his estranged wife relocated to her home village while Lynette Adhiambo disappeared after his arrest.
The accused indulges in alcohol, smokes cigarettes and bhang .He was also intoxicated at the time of the offence .He has not been through the criminal justice system and no bail history was established.
With regard to this case, the accused acknowledged the gravity of the offence and the severity of the sentence, he prays for lenient bail terms. The family seems not to comprehend the severity of the offence.
The accused family views are also on record. The family was conflicted over the his release, his sister wanted the title deed to be used to secure his release, the accused brother adamantly declined asking what if, the accused disappears and what would happen to them.
The accused’s brother also claimed that he had not set his eyes on the accused since their father’s funeral. He rarely went home and the accused did not have a house.
The only semblance of a fixed abode could be his rural home.
The family was advised to discuss the issue and give feedback and also provide contacts of the local administration but no report was brought. The Probation Officer read this as demonstrating their hesitation to engage the local administration in their issues. Further, the accused family seems not to comprehend the severity of the offence.
The victim’s view was represented by the family of the late Thomas Muema. The deceased was married and had 2 children. He had been a freelance mason and his brothers have assumed parental responsibility of the young family.
The deceased’s mother is still traumatized and sought to be excused from the interview. That deceased father though devastated is optimistic that his death will not be in vain and the family will get justice.
The accused was the deceased friend and the accused family had reached out and arranged for a meeting but went silent on the issue.
The deceased’s father fears that he may be harmed. That he identified the accused to the police. His brother-in-law was also with him during the incidence and is a key witness in the case. That the accused release presence may jeopardize the family’s security.
Allegations were also made on how he killed someone else before thus his alias name ‘ Killer ’.
WRITTEN SUBMISSIONS
PROSECUTION’S SUBMISSIONS
The prosecution identified three compelling reasons to deny the accused bond. That the accused is a flight risk due to lack of fixed abode and weak family ties. Substantial risk of witness interference and intimidation and victim family’s interference.
That the Probation Officers report corroborates the replying affidavit on the fact that the accused lacks a fixed abode. The accused rental residence is in Mlango where he had lived for two years prior to the offence and the residence is likely to have a new tenant.
The accused rarely visited his rural home in Machakos prior to the arrest and his brother had not seen him since his father’s funeral.
The accused family is divided on whether to support his release, his brother fiercely opposed proving lack of familial consensus.
The prosecution refers to the case of Githinji -Vs- Republic Criminal Revision E017 of 2023 and urged the court that the circumstances undermine assurance of compliance with bail terms.
Further that the deceased brother was forced to relocate from Mihango due to fear of retaliation and that the threat is not speculative.
The accused socialized with witnesses on the night of the murder and his violent tendencies and brutal stabbing heightened concerns that he may seek to silence them.
Protection of the prosecution witnesses is paramount in securing justice for the deceased. The prosecution refers to the case of Republic –Vs- Joktan Mayende on ground of witness interference to decline bail.
Lastly that the deceased family has suffered irreparable loss, a young father of two and has left widow children and parents in profound grief. The deceased father has placed hope in the court for justice.
The family fears that granting bail would compound their anguish and undermine trust in judicial process. Their opposition is a legitimate consideration for denying bail. The prosecution relies on the case of Republic –Vs- Fredrick Ole Leliman & 4 others (2016) eklr where multiple affidavits sworn by interested persons opposing bail were recognized by the court.
The accused submissions were not on record at the time of writing the Ruling on Bail/Bond.
Analysis & Determination.
Bail pending trial 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 .
The burden of proof is on the prosecution to prove compelling reasons to limit the right to bond under Article 49 of the Constitution.
The court exercises discretion on the application but is bound by the law.
Section 123A of the Criminal Procedure Code lists compelling reasons for consideration to include:
(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 fulfillment 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—
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;
Should be kept in custody for his own protection.
The general principles for consideration as per the Judiciary Bail & Bond Policy Guidelines are listed as: The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty. The strength of the prosecution case. Character and antecedents of the accused person. The failure of the accused person to observe bail or bond terms. Likelihood of interfering with witnesses. The need to protect the victim or victims of the crime. The relationship between the accused person and potential witnesses. Child offenders. The accused person is a flight risk. Whether accused person is gainfully employed. Public order, peace or security. Protection of the accused person. See, Republic v Richard David Alden [2016] eKLR
I have considered the application and parties represented views on the accused application for bail.
The issue for determination is :-
Whether the accused will turn up for trial if he is released .
Whether the witnesses would be threatened .
The accused case is that he will reside in his rural home at Machakos. He was a mason and urges that his family depends on him, his children are destitute and his wife does not work. From the report, the accused sister supports his release and is willing to assist him using the family land.
However, the family is conflicted and the Accused person’s brother would not want the land title to be used in fear that the accused will abscond. The probation report also indicates that the accused is not known in the rural home which he rarely visits.
Further that details and contacts of the area local administration and community could not be obtained. The accused’s family seem not to be committed to involve the local administration.
The main purpose of bail is for the accused to turn up. All circumstances must point towards this assurance that he will attend court.
Family and local administration play a crucial role in bail terms. The accused close relation provide proof of competent sureties and assist in compliance of bond terms by ensuring he turns up and being accountable to the court when he absconds.
In Republic -Vs- James Kiarie Mutungei [2017] eKLR Nyakundi J defined bail and further emphasized the place of competent surety. That :
“ Bail in our criminal justice system is the security given for the release of an accused person detained in custody pending trial or appeal furnished by signing a personal bond or a surety signing a guarantee of ensuring his attendance before any court as required and specified .”
Section 124 ,125 and 127 of the Criminal Procedure Code speak to the process and import of sufficient security & surety.
Courts have held that absconding is heightened in serious offences which also carry severe penalties .In the case of Criminal Application No. 319 of 2002 Priscilla Jemutai Kolongei vs. Republic (unreported):, the court held that :-
“However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive. “See page 3 of the decision.
Also see Jonathan Kyalo Mutuku v Republic [2021] eKLR citing S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August 2017) & S v Hudson 1980 (4) SA 145 (D) 146 in the following terms;
“The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.”
In Jonathan Kyalo Mutuku, the court found that the issue of being a flight risk is pertinent. . However, it is a matter that can be addressed by other means when settling the terms and conditions of bail/bond, if the court is inclined to grant bond/bail to the accused.
In such cases stringent terms are imposed as a matter of course to mitigate these risks. In the case of REPUBLIC -Vs- DWIGHT SAGARAY & OTHERS Cr.Case. No. 61 of 2012 the court was of the view that the answer to lack of abode is to give stringent terms of release on bail. The accused was a Venezuelan citizen and was claimed to be a flight risk. In Jonathan Kyalo Mutuku, the court also found that the issue of being a flight risk is pertinent. . However, it is a matter that can be addressed by other means when settling the terms and conditions of bail/bond, if the court is inclined to grant bail/bond to the accused.
Such terms are supervisory in nature and ordinarily include reporting to the area administration and/or police station and restricting the accused movement until the matter is determined .
The rule is that each case must be determined according to pertinent facts. The court must also balance the accused right to and presumption of innocence during trial with the interests of the administration of justice which must not be prejudiced .
In the case of Republic -Vs- Mbiti Munguti [2020] eKLR , the High Court held that :-
“The discretion to grant bail and set the conditions rests with the court. In exercising its discretion, the court must seek to strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of justice, the court will lean in favour of liberty and grant bail where possible, provided the interests of justice will not be prejudiced by this.”
Further that:
“..from the Thesaurus meaning of compelling reasons the court would consider any fact or circumstances brought to its attention by the prosecution which would convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the accused will attend trial.”
See paragraph 10 in the case of Republic -Vs- Mbiti Munguti [2020] eKLR. Also see George Madegwa -Vs- Republic
In this case, the assurance that the accused will turn up for trial is diminished considering the difficulties to get family support and lack of local administration contact explained in the Prebail report . The accused might not be traced and the court might not get a reliable person or local administration to assist in holding him accountable.
Further, personal recognizance cannot apply in the matter considering the gravity of the offence and compelling grounds in the case.
Ability to comply with the courts bond terms must be demonstrated.
I have also considered other grounds in the replying affidavit. That there is threat of witness interference and that offence occurred in view of witnesses lined to testify in the case. The accused father points out that the accused brother in law who was present during the situation and who had socialized with the accused on the date of the offence .The deceased father also fears for his security and claims that he identified the accused to the police .
The Oxford dictionaries defines compelling reasons as:
‘ compelling – something so grieving, so strong, so convincing and undeniable.’
Threat of witnesses should not be speculative, instead, it must be perceived with a real likelihood that it will occur in the case . See R. V. Dwight Sagaray & 4 others , 2013 eKLR , where the court stated that: -
“For the prosecution to succeed in persuading the court on this criteria, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect, incriminating communication between the accused and witnesses; close familiar relationship between the accused and witnesses among others.”
Again, each case is determined in its circumstances. The prosecution’s grounds have been corroborated by the victim’s fears reflected in the probation report which remain uncontested.
I find that the prosecution proved compelling reasons and that the application is to be declined at this stage.
DISPOSITION
From the record, the court has taken the evidence of 1 witness and the accused was arraigned in the year 2022. Considering the age of the matter it is essential that the trial be expedited. The accused may also lodge his application when circumstances change after the neighbour and close friend testify.
Further mention for Directions 10/11/2025
RULING DELIVERED SIGNED & DATED IN OPEN COURT AT CRIMINAL DIVISION-NAIROBI THIS 9/10/2025 VIRTUALLY/PHYSICALLY.
'