https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11255

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **CRIMINAL CASE NO. E005 OF 2026** **REPUBLIC……………………………………………………….………DPP** **-VERSUS-** **VICTOR MENGICH CHESANG……………………………….ACCUSED** **RULING** 1. **Victor Mengich Chesang,** the Accused, was arraigned following the information that he committed **Murder contrary to Section 203 as read with Section 204 of the Penal Code.** Particulars of the offence are that on the 2nd day of January, 2026 at Salama Police Station, Nyahururu Sub-County within Laikipia County he murdered PC Abel Kimanzi. 2. He denied the charges and now he seeks bail pending trial. Through the learned defence counsel, Mr. Onkengi, they seek reasonable bail terms. He urges that the Accused, a police officer has been attending court. He has a young family and a fixed place of abode. 3. The State through Irene Kathambi a Principal Investigation Officer deposed an affidavit where it is averred that the Accused is charged with a capital offence that attracts a severe sentence upon conviction therefore there exists a real and substantial risk that the Accused may abscond if released on bail. 4. That the Accused, deceased, surviving victim and key prosecution witnesses were colleagues stationed at Salama Police station; hence the witnesses are known to the Accused and in a position of professional familiarity with them. 5. That a victim, Sgt. Wahome Muiruri sustained serious injuries including head stab wounds and a fractured hand while attempting to intervene during the incident leading to the death of the deceased. And, the release of the Accused on bail poses a real risk to their safety, security and psychological well-being. That by virtue of his position and training he wields inference that may be used to intimidate, interfere with or otherwise compromise prosecution witnesses who are colleagues. 6. And, that the strength of the prosecution’s case establishes a case that enhances the likelihood of flight risk should bail be granted. 7. The victims oppose bail on the ground that there is a risk of interference with the witnesses. 8. Pursuant to the provisions of **Section 9 and 10 of the Victim Protection Act,** the court called for a pre-bail report. The Accused is stated to be aged 42 years old, a husband and father of three children with a stable abode and family relations. The local administration do not perceive him to be a security threat but the secondary victims oppose his release on bail citing the possibility of interference with the case through threats and intimidation and he may be a flight risk. 9. An Accused person is presumed innocent until proven otherwise therefore before the crime is proved it is unjust to have him incarcerated. (See **Article 50(2)(a) of the Constitution**). 10. **Article 49(1)(h) of the Constitution** provides thus; ***(1) An arrested 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.*** 1. An Accused person who is viewed innocent is guaranteed bail, and, on reasonable terms unless compelling reasons exist that require their incarceration. 2. Compelling reasons were defined in ***Republic v Joktan Mayende & 3 Others [2012] KEHC 555(KLR)*** 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 standard set by the Constitution.”*** 1. The **Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25** provides circumstances under which an Accused person can be denied bail as follows; ***The following procedures should apply to the bail hearing:*** ***(a) The prosecution shall satisfy the court, on a balance of probabilities,57 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; 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.*** 1. **Section 123A of the Criminal Procedure Code** provides; ***(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 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—*** ***(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.*** 1. Issues that stand out following the argument put forth by the State as deposed in the affidavit that may amount to compelling reasons if established are; * The strength of the case. * The likelihood to interfere and intimidate the witnesses. * The Accused is a flight risk. 1. **Section 10 of the Victim Protection Act** provides thus; ***A victim has a right to—*** ***(a)be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;*** ***(b)have their safety and that of their family considered in determining the conditions of bail and release of the offender; and*** ***(c)have their property protected.*** 1. A victim of crime must be safe. Their families must also be protected. In ***Republic v Fredrick Ole Leliman & 4 Others [2016] KEHC 992 (KLR)*** Lesiit J(as she then was) stated that; ***“Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that accused may interfere with the evidence; or may endanger an individual or individuals or the public at large; likelihood the accused may commit other offences. In these instances where such interferences may occur the court has to determine whether the integrity of the criminal process and the evidence may be preserved by attaching stringent terms to the bond or bail terms; or whether they may not be guaranteed in which case the court may find that it is necessary to subject the accused to pre-trial detention.”*** 1. The affidavit evidence indicates that the prosecution has a strong case against the Accused. This is however subject to being tested hence at this stage it cannot be a basis for denial of the Accused’s bail. 2. The paramount consideration the court must have in mind when dealing with the question of bail is to ensure that the Accused will turn up for trial because he has a right to liberty following the presumption of innocence. The Accused is stated to be a family man with a fixed place of abode. 3. There is however the question of interference and intimidation of a surviving victim who is a colleague to the Accused and other witnesses stated to have intervened to restrain the Accused. Then the question of the incident having caused tension within Salama and Nyahururu areas. There was no affidavit in opposition of the affidavit deposed by the State. General denials were made in submissions filed by the defence counsel which is not evidence but arguments summarizing what is presented. This is insufficient, the allegations stand undisputed. In ***Joktan Mayende (Supra)*** the court gave various scenarios of interference with witnesses thus; ***“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.*** ***Except for a general denial that the fourth accused assaulted C.N, there is no any specific evidence which rebuts the evidence before the court that the fourth accused accosted the said C.N, a witness in this case.*** ***In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice; undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the Preamble to the Constitution of Kenya, 2010.”*** 1. In ***Republic v Gerald Mutuku Nyalita & Another [2015] KEHC 1029 (KLR)*** the court stated that; ***“[5] In considering the likelihood of interference with witnesses as a compelling ground to refuse bail in terms of Article 49 (1) (h) of the Constitution of Kenya, the Prosecution must, in my view, demonstrate a more than whimsical probability of interference. It must be shown that the accused persons are in such close family, filial or other relationship which creates an environment of control and influence of the witness by the accused person such as to interfere with the ability of the witness to give evidence before the court in a free and truthful manner thereby affecting either the credibility of the witness in his or her testimony before the court or the very ability of the witness to attend court. The tenderness of age or the mental acuity of the witness may be factors to be considered in the determination as to the likelihood of interference. The nature of the testimony of the witnesses – as eye-witness or circumstantial – is also relevant.”*** 1. As demonstrated by the State the Accused is close to witnesses, his colleagues. Their relationship creates a chance of interfering with them, which will affect them hence their testimony. This fact is further demonstrated by what is deponed and not controverted that the key witnesses survived the attack, and sustained serious injuries when he attempted to intervene during the incident leading to the death of the deceased. Such a person can easily be intimidated. 2. Denying of bail on the likelihood of interference and intimidation of witnesses is done by courts for purposes of preserving the integrity of the matter and justice by ensuring the trial is not frustrated. 3. The upshot of the matter is that the question of interference is of concern, therefore it calls upon the court to deny the Accused bail until key witnesses testify, which I hereby do. 4. An application for review may be made if circumstances change. 5. It is so ordered. **Dated, signed and delivered virtually at Nyahururu this 21st July, 2026.** **L.N. MUTENDE** **JUDGE**