1. The applicant, Moses Karanja Ndirangu alias Kamusa (hereinafter the accused) faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code . The particulars allege that on 31st October 2022 at Kanjo Phase 2 Area in Naivasha Sub-County within Nakuru County, the accused unlawfully murdered Kennedy Mwangi Kimiri.
2. The court record shows that the accused was arraigned in court on 7th December 2022. He denied the charges.
On the same date, his learned counsel, Ms. Sabaya , made an oral application seeking that he be admitted to bail or bond on reasonable terms pending his trial.
3. The prosecution opposed the application through a replying affidavit sworn on 8th December 2022 by the investigating officer CPL Charles Mainya . The court record shows that the court reserved its ruling on the application which was to be delivered on 30th March 2023. However, for reasons which are not clear on the court record, the ruling was not delivered.
4. The court record also reveals that through his learned counsel, the accused made another attempt to secure his release on bond pending trial. This was done through a Notice of Motion dated 15th December 2023.
5. The application was opposed by the prosecution vide grounds of opposition dated 22nd May 2024 and affidavits dated 9th and 10th July 2024 sworn by Lydia Wamaitha Mwangi on behalf of the victims family and PC Linda Were , the investigating officer.
6. The application was canvassed before the trial court then presided over by Hon. Lady Justice Grace Nzioka who in her ruling dated 2nd April 2025 dismissed and/or struck out the application. The application was dismissed on grounds that it was incompetent as it was supported by an affidavit sworn by the accused’s mother instead of the accused person who was the only person with personal knowledge of the matters deposed to in the affidavit. The court however gave the accused person liberty to file a competent application for consideration by the court on its merits.
7. Subsequently, the case proceeded for hearing and a total of five witnesses testified before Hon. Lady Justice Nzioka before she was transferred to another station. I took over the case on 14th May 2026 and after complying with the provisions of Section 200 as read with Section 201 of the Criminal Procedure Code , the accused elected to have hearing of the case continue from where my predecessor had stopped.
8. Thereafter, learned counsel, Mr Obondo holding brief for Ms Sabaya made a fresh oral application seeking admission of the accused to bond pending conclusion of his trial. Learned prosecution counsel, Ms. Chepkonga , requested the court to call for a current pre-bail report to assist the court make a fair and just determination of the application. The court acceded to the request and a pre -bail report was subsequently filed dated 3rd June 2026.
9. At the hearing, Ms. Chepkonga opposed the application arguing that if released, the accused’s safety and security would be compromised considering that he was subjected to mob justice after commission of the offence as a result of which he sustained serious injuries. She urged the court to note that the current pre-bail report was unfavourable to the accused as the local administration had confirmed that there was still tension in the community and the possibility of a revenge attack on him could not be overruled.
10. The prosecution also opposed the application on grounds that it had been made in the middle of the trial after six prosecution witnesses had testified; that the accused was now aware of the strong case made out against him by the prosecution and if released, he was likely to abscond. For this preposition, counsel relied on Paragraph 4.9 b of The Bail and Bond Policy Guidelines and the case of Republic V Margaret Nyaguthii Kimeu [2013] eKLR in which the court declined to grant the accused bond in the middle of the trial guided by the strength of the prosecution case.
11. In rejoinder, Ms Sabaya argued that the right to a fair trial was non-derogable; that one of the tenents of a fair trial was the right of an accused person to the presumption of innocence. Further, counsel urged the court to note that the only concerns raised against admission of the accused to bond related to feelings of the victim’s family; that the court should take into account the accused’s personal circumstances and uphold his right to the presumption of innocence.
12. Regarding the claim that the accused’s safety may be compromised if the application was allowed, Ms Sabaya argued that the threat of insecurity was speculative and that in any case, it was the State’s duty to maintain law and order. She also submitted that the accused’s security may not be an issue if released since according to the pre- bail report, his mother and sister had offered to provide him with alternative accommodation away from the area in which the incident occurred.
13. It is trite that under Article 49 (1) (h) of the Constitution of Kenya, an arrested or accused person has a right to be released on bail or bond on reasonable conditions pending a charge or trial unless there were compelling reasons not to be released.
14. The Court of Appeal in Michael Juma Oyamo & Another V Republic (2019) eKLR cited with approval the High Court decision in Republic V Joktan Mayende and 3 Others Criminal Case No. 55 of 2009 in which the court defined the phrase “compelling reasons” as follows:
“ The phrase 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.”
15. Section 123 A (1) of the Criminal Procedure Code (CPC) as read with The Judiciary Bail and Bond Policy Guidelines 2015 Paragraph 4.26 provides guidance on the factors courts should consider when exercising their discretion in deciding whether or not to admit an accused person to bond pending trial. These factors whether considered individually or collectively may constitute compelling reasons to justify denial of bail or bond pending trial. They include the following;
i) Whether the accused was likely to abscond;
ii) Whether he was likely to commit or abet commission of a serious offence;
iii) The nature and seriousness of the offence.
iv) Whether if released the accused was likely to endanger the safety of victims, individuals and the public;
v) Whether he was likely to interfere with witnesses or evidence;
vi) Whether he was likely to endanger national security or whether denial of bond was in the public interest .
vii) Whether the accused should be kept in custody for his own protection.
16. It is a well settled legal principle that where an application for bond pending trial was opposed, the prosecution bore the burden of demonstrating to the satisfaction of the court existence of compelling reasons which would justify denial of bail or bond - See: R epublic Vs Danson Mgunya and Kassim Sheebwana Mohamed, Mombasa Criminal Case No. 26 of 2008; Patius Gichobi Njagi & 2 Others V Republic (2013) eKLR.
17. As stated earlier, one of the reasons advanced by the prosecution in opposing the application was that the prosecution had already established a strong case against the accused through the six witnesses who had already testified and since the accused was aware of the case presented against him, if released at this stage of the trial, he was likely to abscond.
18. In my view, whereas the stage of proceedings in a trial and the evidence adduced at the time an application for bond was made were relevant considerations in the exercise of the court’s discretion in determining such an application, the mere fact that the prosecution’s case was at an advanced stage or the strength of the prosecution case by itself cannot constitute a compelling reason to warrant an accused person’s continued detention in custody. The prosecution must go a step further and demonstrate that the evidence so far adduced presented a great incentive to the accused to abscond in order to defeat the course of justice.
19. I am fortified in the above finding by the persuasive authority of Republic V Jane Muthoni Muchere & Another (2017) eKLR in which Hon. Ngugi J (as he then was) addressed his mind to the question whether the strength of the prosecution case was sufficient to constitute a compelling reason to justify denial of bond. The learned Judge expressed himself as follows;
“21. The question presented here, then, is whether the Prosecution has, on a balance of probabilities, demonstrated compelling reasons to continue denying bail to the Accused Persons. Tailored to the arguments by the Prosecution and Victims’ Counsel, here the question is whether the strength of the prosecution case coupled with the risk of absconding jointly constitute compelling reasons to deny bail in this case.
22. In the ruling of 20/12/2016, I explained the proper context of when the strength of the prosecution case can be a legitimate factor in denying bail. The Bail/Bond Policy Guidelines at p. 16 (Paragraph 4.9(b)) is couched in the following language:
An Accused Person should not be subjected to pretrial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pretrial detention where the evidence against the accused person is strong. For example, where all the prosecution witnesses have testified, and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond and should therefore be denied bail.
23. The Policy Guidelines cited R v Margaret Nyaguthi Kimeu [2013] eKLR for the last proposition. Ms. Mwaniki has argued that at this point the instant case is on all fours with the Margaret Nyaguthi Kimeu Case. This is because, she argued, the Court has now heard key Prosecution witnesses and has a sense of what direction the trial is taking.
24. In the ruling of 20/12/2016, I expressed the view that while the strength of the prosecution case can be a valid factor in consideration whether bail should be granted and whether there are compelling reasons to refuse bail, it alone, like the nature of the offence, is not sufficient reason to deny bail. The apparent strength (or weakness) of the Prosecution case can be one of the factors that a Court takes into account but it cannot be the anchor reason for denying bail….”
20. I wholly concur with the reasoning of the learned Judge in the aforementioned decision. In this case, it is important to note that the six witnesses who have testified are apparently the prosecution’s key witnesses as the remaining two witnesses were said to be the investigating officer and the scene visiting officer. And although i cannot say that the prosecution case is tenuous, it is my finding that the prosecution has failed to demonstrate how the case so far presented created an incentive for the accused to abscond or how it constituted a compelling reason to justify the continued detention of the accused.
21. In making the above finding, I am acutely cognizant of the fact that although I cannot comment on the nature of the evidence so far on record for fear of prejudicing the fair conclusion of the trial, I am enjoined to balance the competing interests of the state to prosecute offenders to vindicate the right of victims of crime of access to justice and the protection of citizens in general against an accused person’s right to presumption of innocence which requires that no person should be deprived of personal liberty without lawful justification.
22. That said, i now turn to consider the prosecution’s other key reason for objecting to the accused’s application for bond pending trial. According to the prosecution, members of the community in which the accused hails from who included the victim’s family were still bitter over the loss of their loved one and were still hostile towards the accused. In the prosecution’s view, the release of the accused on bond or bail may trigger retaliation which may expose his safety to jeopardy.
23. Although it is evident from the record that it has been about four years since the offence was allegedly committed and reasonably speaking, it would be expected that the tension or hostility that existed in the community soon after commission of the alleged offence ought to have subsided by now, it is apparent from the pre-bail report that this is not the position in this case. This must be why the local administrators of Kanjo Phase 2 Area where the incident occurred were uncertain of how the community would react to the accused’s release on bond.
24. The above is compounded by the fact that it is not disputed that both the accused and the deceased’s family live in the same Estate/ village. Learned counsel for the accused, Ms Sabaya , relying on the pre-bail report argued that the accused’s mother and sister were willing to secure alternative residence for the accused if released in order to ensure his safety. They have however not sworn an affidavit to confirm availability of the alleged alternative residence, its location and identity of the person offering the said alternative place of aboard.
25. In the absence of sufficient evidence confirming availability of alternative accommodation away from the l ocus in quo, the probability that the accused would go back to live in the same estate as the victim’s family if released was very high and if this happened, the possibility of a confrontation or renewed tension between the accused, the victims family or the community at large cannot be said to be far fetched. This is particularly so considering that it is not disputed that after the deceased’s death, the accused was subjected to mob justice in which he sustained life threatening injuries.
26. The right to life, including the life of an accused person is sacrosanct and that is why it is constitutionally guaranteed under Article 26 (1) of the Constitution. This court must therefore, in the exercise of its discretion, take reasonable precautions to ensure that the accused's constitutional right to liberty is balanced against the legitimate concern for his safety and the preservation of public order. It would be remiss of this court to release the accused on bond in circumstances which were likely to endanger his life or safety. And this in my view constitutes a compelling reason to justify denial of the accused’s constitutional right to bond pending the remainder of his trial.
27. Having arrived at the above finding, I decline to allow the application and it is hereby dismissed. However, given the age of this case and to balance the rights of the accused person, I direct that on the next hearing date, which shall be fixed on a priority basis, the prosecution must avail it’s remaining two witnesses in order to expedite disposal of the case.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIVASNHA this 18th day of August 2026
2. The court record shows that the accused was arraigned in court on 7th December 2022. He denied the charges.
On the same date, his learned counsel, Ms. Sabaya , made an oral application seeking that he be admitted to bail or bond on reasonable terms pending his trial.
3. The prosecution opposed the application through a replying affidavit sworn on 8th December 2022 by the investigating officer CPL Charles Mainya . The court record shows that the court reserved its ruling on the application which was to be delivered on 30th March 2023. However, for reasons which are not clear on the court record, the ruling was not delivered.
4. The court record also reveals that through his learned counsel, the accused made another attempt to secure his release on bond pending trial. This was done through a Notice of Motion dated 15th December 2023.
5. The application was opposed by the prosecution vide grounds of opposition dated 22nd May 2024 and affidavits dated 9th and 10th July 2024 sworn by Lydia Wamaitha Mwangi on behalf of the victims family and PC Linda Were , the investigating officer.
6. The application was canvassed before the trial court then presided over by Hon. Lady Justice Grace Nzioka who in her ruling dated 2nd April 2025 dismissed and/or struck out the application. The application was dismissed on grounds that it was incompetent as it was supported by an affidavit sworn by the accused’s mother instead of the accused person who was the only person with personal knowledge of the matters deposed to in the affidavit. The court however gave the accused person liberty to file a competent application for consideration by the court on its merits.
7. Subsequently, the case proceeded for hearing and a total of five witnesses testified before Hon. Lady Justice Nzioka before she was transferred to another station. I took over the case on 14th May 2026 and after complying with the provisions of Section 200 as read with Section 201 of the Criminal Procedure Code , the accused elected to have hearing of the case continue from where my predecessor had stopped.
8. Thereafter, learned counsel, Mr Obondo holding brief for Ms Sabaya made a fresh oral application seeking admission of the accused to bond pending conclusion of his trial. Learned prosecution counsel, Ms. Chepkonga , requested the court to call for a current pre-bail report to assist the court make a fair and just determination of the application. The court acceded to the request and a pre -bail report was subsequently filed dated 3rd June 2026.
9. At the hearing, Ms. Chepkonga opposed the application arguing that if released, the accused’s safety and security would be compromised considering that he was subjected to mob justice after commission of the offence as a result of which he sustained serious injuries. She urged the court to note that the current pre-bail report was unfavourable to the accused as the local administration had confirmed that there was still tension in the community and the possibility of a revenge attack on him could not be overruled.
10. The prosecution also opposed the application on grounds that it had been made in the middle of the trial after six prosecution witnesses had testified; that the accused was now aware of the strong case made out against him by the prosecution and if released, he was likely to abscond. For this preposition, counsel relied on Paragraph 4.9 b of The Bail and Bond Policy Guidelines and the case of Republic V Margaret Nyaguthii Kimeu [2013] eKLR in which the court declined to grant the accused bond in the middle of the trial guided by the strength of the prosecution case.
11. In rejoinder, Ms Sabaya argued that the right to a fair trial was non-derogable; that one of the tenents of a fair trial was the right of an accused person to the presumption of innocence. Further, counsel urged the court to note that the only concerns raised against admission of the accused to bond related to feelings of the victim’s family; that the court should take into account the accused’s personal circumstances and uphold his right to the presumption of innocence.
12. Regarding the claim that the accused’s safety may be compromised if the application was allowed, Ms Sabaya argued that the threat of insecurity was speculative and that in any case, it was the State’s duty to maintain law and order. She also submitted that the accused’s security may not be an issue if released since according to the pre- bail report, his mother and sister had offered to provide him with alternative accommodation away from the area in which the incident occurred.
13. It is trite that under Article 49 (1) (h) of the Constitution of Kenya, an arrested or accused person has a right to be released on bail or bond on reasonable conditions pending a charge or trial unless there were compelling reasons not to be released.
14. The Court of Appeal in Michael Juma Oyamo & Another V Republic (2019) eKLR cited with approval the High Court decision in Republic V Joktan Mayende and 3 Others Criminal Case No. 55 of 2009 in which the court defined the phrase “compelling reasons” as follows:
“ The phrase 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.”
15. Section 123 A (1) of the Criminal Procedure Code (CPC) as read with The Judiciary Bail and Bond Policy Guidelines 2015 Paragraph 4.26 provides guidance on the factors courts should consider when exercising their discretion in deciding whether or not to admit an accused person to bond pending trial. These factors whether considered individually or collectively may constitute compelling reasons to justify denial of bail or bond pending trial. They include the following;
i) Whether the accused was likely to abscond;
ii) Whether he was likely to commit or abet commission of a serious offence;
iii) The nature and seriousness of the offence.
iv) Whether if released the accused was likely to endanger the safety of victims, individuals and the public;
v) Whether he was likely to interfere with witnesses or evidence;
vi) Whether he was likely to endanger national security or whether denial of bond was in the public interest .
vii) Whether the accused should be kept in custody for his own protection.
16. It is a well settled legal principle that where an application for bond pending trial was opposed, the prosecution bore the burden of demonstrating to the satisfaction of the court existence of compelling reasons which would justify denial of bail or bond - See: R epublic Vs Danson Mgunya and Kassim Sheebwana Mohamed, Mombasa Criminal Case No. 26 of 2008; Patius Gichobi Njagi & 2 Others V Republic (2013) eKLR.
17. As stated earlier, one of the reasons advanced by the prosecution in opposing the application was that the prosecution had already established a strong case against the accused through the six witnesses who had already testified and since the accused was aware of the case presented against him, if released at this stage of the trial, he was likely to abscond.
18. In my view, whereas the stage of proceedings in a trial and the evidence adduced at the time an application for bond was made were relevant considerations in the exercise of the court’s discretion in determining such an application, the mere fact that the prosecution’s case was at an advanced stage or the strength of the prosecution case by itself cannot constitute a compelling reason to warrant an accused person’s continued detention in custody. The prosecution must go a step further and demonstrate that the evidence so far adduced presented a great incentive to the accused to abscond in order to defeat the course of justice.
19. I am fortified in the above finding by the persuasive authority of Republic V Jane Muthoni Muchere & Another (2017) eKLR in which Hon. Ngugi J (as he then was) addressed his mind to the question whether the strength of the prosecution case was sufficient to constitute a compelling reason to justify denial of bond. The learned Judge expressed himself as follows;
“21. The question presented here, then, is whether the Prosecution has, on a balance of probabilities, demonstrated compelling reasons to continue denying bail to the Accused Persons. Tailored to the arguments by the Prosecution and Victims’ Counsel, here the question is whether the strength of the prosecution case coupled with the risk of absconding jointly constitute compelling reasons to deny bail in this case.
22. In the ruling of 20/12/2016, I explained the proper context of when the strength of the prosecution case can be a legitimate factor in denying bail. The Bail/Bond Policy Guidelines at p. 16 (Paragraph 4.9(b)) is couched in the following language:
An Accused Person should not be subjected to pretrial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pretrial detention where the evidence against the accused person is strong. For example, where all the prosecution witnesses have testified, and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond and should therefore be denied bail.
23. The Policy Guidelines cited R v Margaret Nyaguthi Kimeu [2013] eKLR for the last proposition. Ms. Mwaniki has argued that at this point the instant case is on all fours with the Margaret Nyaguthi Kimeu Case. This is because, she argued, the Court has now heard key Prosecution witnesses and has a sense of what direction the trial is taking.
24. In the ruling of 20/12/2016, I expressed the view that while the strength of the prosecution case can be a valid factor in consideration whether bail should be granted and whether there are compelling reasons to refuse bail, it alone, like the nature of the offence, is not sufficient reason to deny bail. The apparent strength (or weakness) of the Prosecution case can be one of the factors that a Court takes into account but it cannot be the anchor reason for denying bail….”
20. I wholly concur with the reasoning of the learned Judge in the aforementioned decision. In this case, it is important to note that the six witnesses who have testified are apparently the prosecution’s key witnesses as the remaining two witnesses were said to be the investigating officer and the scene visiting officer. And although i cannot say that the prosecution case is tenuous, it is my finding that the prosecution has failed to demonstrate how the case so far presented created an incentive for the accused to abscond or how it constituted a compelling reason to justify the continued detention of the accused.
21. In making the above finding, I am acutely cognizant of the fact that although I cannot comment on the nature of the evidence so far on record for fear of prejudicing the fair conclusion of the trial, I am enjoined to balance the competing interests of the state to prosecute offenders to vindicate the right of victims of crime of access to justice and the protection of citizens in general against an accused person’s right to presumption of innocence which requires that no person should be deprived of personal liberty without lawful justification.
22. That said, i now turn to consider the prosecution’s other key reason for objecting to the accused’s application for bond pending trial. According to the prosecution, members of the community in which the accused hails from who included the victim’s family were still bitter over the loss of their loved one and were still hostile towards the accused. In the prosecution’s view, the release of the accused on bond or bail may trigger retaliation which may expose his safety to jeopardy.
23. Although it is evident from the record that it has been about four years since the offence was allegedly committed and reasonably speaking, it would be expected that the tension or hostility that existed in the community soon after commission of the alleged offence ought to have subsided by now, it is apparent from the pre-bail report that this is not the position in this case. This must be why the local administrators of Kanjo Phase 2 Area where the incident occurred were uncertain of how the community would react to the accused’s release on bond.
24. The above is compounded by the fact that it is not disputed that both the accused and the deceased’s family live in the same Estate/ village. Learned counsel for the accused, Ms Sabaya , relying on the pre-bail report argued that the accused’s mother and sister were willing to secure alternative residence for the accused if released in order to ensure his safety. They have however not sworn an affidavit to confirm availability of the alleged alternative residence, its location and identity of the person offering the said alternative place of aboard.
25. In the absence of sufficient evidence confirming availability of alternative accommodation away from the l ocus in quo, the probability that the accused would go back to live in the same estate as the victim’s family if released was very high and if this happened, the possibility of a confrontation or renewed tension between the accused, the victims family or the community at large cannot be said to be far fetched. This is particularly so considering that it is not disputed that after the deceased’s death, the accused was subjected to mob justice in which he sustained life threatening injuries.
26. The right to life, including the life of an accused person is sacrosanct and that is why it is constitutionally guaranteed under Article 26 (1) of the Constitution. This court must therefore, in the exercise of its discretion, take reasonable precautions to ensure that the accused's constitutional right to liberty is balanced against the legitimate concern for his safety and the preservation of public order. It would be remiss of this court to release the accused on bond in circumstances which were likely to endanger his life or safety. And this in my view constitutes a compelling reason to justify denial of the accused’s constitutional right to bond pending the remainder of his trial.
27. Having arrived at the above finding, I decline to allow the application and it is hereby dismissed. However, given the age of this case and to balance the rights of the accused person, I direct that on the next hearing date, which shall be fixed on a priority basis, the prosecution must avail it’s remaining two witnesses in order to expedite disposal of the case.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIVASNHA this 18th day of August 2026