Baya v Republic (Miscellaneous Criminal Application E039 of 2026) [2026] KEHC 6617 (KLR) (15 May 2026) (Ruling)

Baya v Republic (Miscellaneous Criminal Application E039 of 2026) [2026] KEHC 6617 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6617 (KLR) Republic of Kenya In the High Court at Malindi Miscellaneous Criminal Application E039 of 2026 M Thande, J May 15, 2026 Between Charo Kazungu Baya Applicant and Republic Respondent Ruling 1.By his Application dated 7.4.26, the Applicant seeks the following orders:1.Spent.2.Spent.3.That this honourable court do exercise its discretion in revision of the ruling by the Hon. Magistrate Obulutsa (CM) made on the 18th of March 2026 wherein the said magistrate denied and/or refused to grant bail and bond terms to the accused/applicant in contravention of the applicant's constitutional rights.4.That the said Ruling and consequential Orders of the Hon. Magistrate Obulutsa (RM) made on the 18th of March 2026 be set aside and/or varied the accused/applicant be granted bond and/or bail.5.That costs of this Application be provided for. 2.The Applicant’s case is that he alongside 3 others were charged with 2 counts of obtaining registration by false pretenses contrary to Section 330, of the Penal Code and 1 count of conspiracy to defraud contrary to Section 317 of the Penal Code. He pleaded not guilty and a hearing date has been fixed for 1.7.26. While his co-accused were released on bond, the Applicant has been in custody since 4.2.26 as the trial Magistrate declined to release him on bond pending his trial, in violation of his constitutional right. 3.The Applicant faulted the trial court for declining to grant him bond on grounds that the Applicant failed to obey a court order and alleged threats against the estranged husband of the deceased, Luigi Paganini (Luigi). The Applicant argued that the purpose of bail/bond is to secure the attendance of accused persons and not to punish them but that in the present case, the court is using bail/bond to punish the Applicant for alleged disobedience of a court order. 4.It was asserted that no compelling reasons has been presented in court that are forceful and convincing as to make the court deny him bond; that the Applicant is not a flight risk; that he has not made threats to any one including Luigi; that he has not disobeyed a court order which in any event is not aground to deny bail/bond. Further that what the trial court relied on was speculation which do not amount to compelling reasons. 5.The Respondent though given an opportunity to do so, did not file a response to the Application. This notwithstanding, the Court still has a duty to examine the material placed before it to satisfy itself that the orders sought should be granted. (see Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR). 6.The right to bond/bail is guaranteed under Article 49(1)(h) of the Constitution which provides:1.An arrested person has the righth.to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. 7.Section 123A of the Criminal Procedure Code (CPC) provides for instances when bail/bond may be denied 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 and 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 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. 8.The Court notes that none of the grounds listed in Section 123A above, obtain in the present case. 9.The Constitution has not defined “compelling reasons”. However, our courts have made efforts in defining the term in various decisions. In Republic v Joktan Mayende & 3 others [2012] eKLR, Gikonyo, J. had this to say about compelling reasons:And accordingly, 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 standard set by the Constitution. 10.In his ruling of 18.3.26, the trial Court declined to grant bond to the Applicant. The trial Court directed that the Applicant may apply for bond again after availing the password to his phone to the police and after Luigi has testified. The trial thus court set certain conditions which had to be fulfilled before a renewal of the application for bail/bond could be made. 11.In his affidavit in support of the Application, counsel for the Applicant stated that the investigating officer confirmed that he had accessed the Applicant’s phone. This was not controverted. As such, the issue of the password to the Applicant’s phone is now moot. 12.As regards the threat to Luigi, the trial court noted that it is alleged that Luigi’s wife Silvia Paganini died and was cremated in unclear circumstances, after which it was discovered that the Applicant had been registered as the owner of her property in circumstances that are not known. 13.The right to bail/bond is not absolute. Where the court forms a strong opinion that the reasons given by the prosecution opposing bail/bond are forceful and convincing, the bail/bond will be denied. Intimidating or threatening witnesses is a strong and legally acknowledged justification for refusing bail or bond. This conduct is considered a direct risk to the integrity of the judicial system. 14.The Court notes that probation report dated 9.3.26 indicated that the Applicant was unsuitable for the grant of bail/bond. One of the reasons given is that the complainant claimed that there were threats against him by the Applicant. This no doubt is the reason that the trial court directed that the Applicant may renew his application for bond after Luigi had testified. 15.Paragraph 4.26 of the Bail and Bond Policy Guidelines provides the procedures that should apply to bail hearing:a.The prosecution shall satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit, or abet the commission of, a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody. 16.Threatening or interference with witnesses is one of the grounds for denial of bail/bond. This Court notes that the charges the Applicant faces, relate to properties belonging to Silvia Paganini, Luigi’s wife who is said to have died under mysterious circumstances. The affidavits on record indicate that it is Luigi who unearthed the transfer of the deceased’s properties to the Applicant. Luigi has claimed threats to his life by the Applicant. In its ruling, the trial court found that this is a compelling reason to deny the Applicant bail/bond and directed that the application may be renewed after Luigi has testified. I have not been informed that there has been any change of circumstances. I accordingly concur with the trial court given the circumstances herein and find no reason to disturb the finding of the trial court. In any event, the decision to deny the Applicant bail/bond made on 18.3.26 is not final as the trial court did state that the application may be renewed after Luigi has testified. 17.In the end and in view of the foregoing, I find that the Application dated 7.4.26 lacks merit and the same is dismissed. DATED SIGNED AND DELIVERED IN MALINDI THIS 15TH DAY OF MAY 2026M. THANDEJUDGE