https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10530

Republic v Gahohi & 2 others (Criminal Case 081 of 2024) [2026] KEHC 10530 (KLR) (Crim) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10530 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Case 081 of 2024 MW Muigai, J July 13, 2026 Between Republic Prosecutor and Godfrey Mwangi Gahohi 1st Accused Eric Omondi James 2nd Accused AM alias O 3rd Accused Ruling 1.The Accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cop 63 Laws of Kenya.Particulars of the offence being that Godfrey Mwangi Gachohi, Eric Omondi James, and A.M Alias O - On the 23rd day of November, 2024 at Korogosho Area, Starehe Sub County, within Nairobi County jointly with another not before Court, murdered Richard Naidwa. Court Proceedings 2.On 11/6/2025, the 1st time the matter was mentioned in this Court, Mr Kirimi Counsel for 1st Accused stated his client had been in custody since 25/11/2024 and had not taken plea and applied for bail/bond. Ms Tum from ODPP informed the Court, 3rd Accused person, a minor was not in Court and was detained at Kamiti Youth Corrective Centre (KYTC)and had not been produced in Court. 3.The Court granted Court orders for 3rd Accused to be produced in Court on the next mention date, the mental assessment to be conducted on all Accused persons and Advocates to be appointed for 2nd & 3rd Accused persons by Pro bono Committee through Deputy Registrar Criminal Division. 4.On 2/7/2025, the 3 Accused persons were present in Court and respective Counsel. The matter was scheduled for plea-taking, however, mental assessment reports were not availed except for the Age Assessment Report of 3rd Accused person; earlier ordered by Hon LJ D Kavedza that indicated that the 3rd Accused person A.M. ALIAS O upon assessment was found to be between 15-17 years old and confirmed to be a minor. 5.The Court granted adjournment for mental assessment for all Accused persons to be conducted and Reports availed, Committal bundles exchanged with the Counsel on record and the ODPP/State/Prosecution. 6.On 16/7/2025, all Accused persons were represented by Advocates; Mr Onduso for 2nd Accused person and Mr Kimathi for 3rd Accused person & Mr Kaburia for 1st accused person. The Mental Assessment reports for each of the Accused persons and Age assessment reports for all accused persons and Committal bundleswere presented to Advocates on record for perusal. 7.The Plea-taking proceeded. The Information/charge was read to each of the Accused person in Kiswahili by Court Assistant Kinyua; the statement, particulars and ingredients of offence of murder and each Accused person denied the charge and plea of not guilty was recorded for each of Accused persons to the charge statement and particulars of murder. 8.The Defense Counsel applied for bail/bond for each of Accused persons. The Court granted time for Parties/Counsel to file and exchange pleadings and written submissions on bail/bond as ODPP objected to grant of bail/bond to Accused persons. The parties/Counsel were to obtain the Committal bundle from ODPP. 9.On 11/11/2025, the Court record had only written submissions for 2nd Accused person only, and ODPP confirmed filing Affidavit and Written Submissions opposing grant of bail and bond. The Advocates for 1st and 3rd Accused persons were not present physically /virtually and no reason, circumstance or situation was advanced for the Court to consider. The Court set Ruling on Bail & Bond for 2nd Accused person only and the 1st & 3rd Accused persons Advocate to be informed by Deputy Registrar to file submissions on bail /bond or The Deputy Registrar appoints new advocates. 10.This Court delivered Ruling on 15/12/2025 and gave directions as follows;1.Avail copies of ODPP affidavit of Investigation Officer and Written Submissions through Deputy Registrar for Ruling on Bail/bond for 2nd Accused person on 18/12/2025.2.The Children Officer to engage with 3rd Accused and provide a report.3.1st & 3rd Accused persons may file written submissions through advocates on record or DR to appoint other advocates through Pro -bono.4.Alternatively, Pre-Bail Reports to be availed through Deputy Registrar for Ruling later on.At the time only 2nd Accused person filed pleadings and written submissions as follows; 2nd Accused’s Replying Affidavit 11.That he is not a flight risk as he has a fixed abode. He has lived with his parents in the Korogocho Area for over 15 years, and his parents still live in the same area. 12.That he has no capacity to interfere with the alleged prosecution witnesses as alleged by the Applicant, and no evidence has been advanced to demonstrate how he may coerce, threaten and interfere with the prosecution witnesses. 13.That even though the charge against him is serious, there is no evidence linking him to the offence in question and/or the evidence against him is tenuous, hence it will be unjust and unfair for him to be subjected to pre-trial detention. 14.That in as much as the right to bond is not absolute is can only be denied where there are compelling reasons to do so, reasons that were not advanced by Prosecution.He relied on the case of Republic vs Mbiti Munguti [2020] eKLR (Criminal Case 25 of 2019 MKS by Hon Odunga J (as he then was) 2Nd Accused’s Written Submissions - Eric Omondi James 15.On 23rd July 2025 the 2nd accused person through his Advocate filed submissions and stated as follows: 16.PC Richard Kalaine deposed in his affidavit that the accused persons should not be released on bond for reasons that there is a high likelihood of the accused threatening, coercing or interfering with witnesses who are well known to the accused persons and that they are a flight risk, given the serious nature of the charges against them. 17.The 2nd Accused humbly submits that, as an accused person, he has a constitutional right to be released on bail or bond, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released as provided under Article 49(1) of the Constitution of Kenya, 2010. 18.Section 123A (2) of the Criminal Procedure Code further mandates the court to grant bail to an accused person unless the court is satisfied that the accused person has previously jumped bail or should be kept in custody for his safety. Section 123A (1) provides for some of the factors that the court should consider when determining the issue of bond or bail which includes but not limited to nature or seriousness of the offence, the accused's character, antecedents, associations and community ties, the accused's record in respect of the fulfillment of obligations under previous grants of bail, and the strength of the evidence related to the offence in question. 19.The 2nd Accused reiterates that the said allegations by the affiant, advanced as compelling reasons for denial of bail, remain mere allegations not substantiated by evidence as required under law. They rely upon the case of Republic v Wanjiku & another (Criminal Case E002 of 2024) [2024] KEHC 4663 (KLR) (2 May 2024) (Ruling), where it was stated as follows;“In regard to interference with the key witness, the prosecution did not demonstrate by way of affidavits or other evidence that such a thing was likely to happen. Further, the allegation that the accused person's safety is at risk is not supported by any evidence, which is yet another matter of speculation. In the case of R v Joktan Mayende & 3 Others (2012) KLR, the court in considering the scope of Article 49(1) (h) stated as follows:-The phrase "compelling reasons" denotes that the reasons are forceful and convincing, as to make the court feel strongly that the accused should not be released on bond. Bail should therefore not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution." 20.See also Republic v Kemboi (Criminal Case E006 of 2021) [2022] KEHC 10948 (KLR) (27 July 2022) (Ruling) and Nairobi High Court Criminal Case 61 of 2012, Republic vs. Dwight Sagaray & 4 Others, where this Court buttressed the requirement for the prosecution to advance evidence in support of reasons for denial of bond. 21.The issue that remains is that of the bond conditions. The 2nd Accused person has urged this court in his Replying Affidavit to take into consideration the following factors in granting him bail and bond;(i).The 2nd Accused is just over eighteen years of age.(ii)He has a fixed abode as he has been living with his parents and siblings in the Korogocho area for more than fifteen (15) years. 1St Accused’s Written Submissions Godfrey Mwangi Gachohi 22.On 30th April 2026 the 1st accused person through his Advocate filed submissions as filed by the 2nd Accused person verbatim.The written Submissions filed by 1st Accused person mirror those of 2nd Accused person outlined above. He added the following; 23.The issue that remains is that of the bail/bond conditions. The 1st Accused urges this Honourable Court to take into consideration the following factors in granting him bail and bond;(i)The 1st Accused is a very young man of just nineteen (19) years of age.(ii).The evidence linking the 1st Accused to the offence in question is very tenuous. A quick perusal of the witness statements indicates that the Prosecution evidence is very tenuous there was only one (1) witness who alleges to have witnessed the murder, which was allegedly committed in the night, with no other evidence, i.e. DNA and documentary evidence linking the Accused Persons to the crime.(iii).The Accused have already spent more than 1 year and 5 months in pre-trial detention, which violates their Constitutional rights under Chapter Four of the Constitution.(iv).He has a fixed abode as he has been living with his parents and siblings in the Lucky Summer area for more than fifteen (15) years.(v).Prior to his arrest, the It Accused used to work as a casual labourer. He is of a very humble background.(vi).The 1st Accused is a first-time offender. 3Rd Accused Oral Submissions A.M.alias O 24.On 4/5/2026; Mr Kimathi for 3rd Accused person made oral submissions that with regard to the Affidavit opposing Bail/Bond due to possible witness interference the Court may grant bail/bond terms with conditions. The 3rd Accused had the Pre-Bail Report filed on 8/4/2026. Republic's Submission On Denial Of Bond 25.On 30th April 2026 the Prosecution filed submissions on denial of Bond/Bail on the following grounds:-The overwhelming/ strength of the evidence and the seriousness of the offence 26.The Prosecution stated that the offence of murder is the most serious carrying a heavy sentence upon conviction. The gravity of the charge is alone a significant factor that increases the incentive for an accused person to abscond.In Republic vs Joseph Thiongo Waweru & 17 Others [2017] eKLR, the court defined 'compelling reasons' as;“The Constitutional standard for denying bail is the 'compelling reasons test. The burden is on the Prosecution to establish the existence of 'compelling reasons that would justify denial of bail. The evidence presented must be cogent, very strong, and specific, with mere allegations or suspicions being insufficient." 27.Contrary to the 2nd Accused’s assertion that the evidence against him was "tenuous" the evidence against all accused persons, was in fact, overwhelming and direct. The written statement of DW2, Jane Nyacuthie, an eyewitness who has known the Accused persons for years, positively identified them as part of the group of four men who attacked the deceased. High likelihood of interference with the prosecution witness 28.The key witness, DW2. Jane Nyacuthie, has been a resident of Korogocho for 42 years. The accused persons have lived in the same area for over 15 years, they are, by their own admission and evidence on record, neighbors. 29.The witnesses have already demonstrated apprehension.The investigations revealed that other potential witnesses "have declined to record statements due to their security as the suspects are from the same neighborhood and mostly found within Korogocho and suspected to be dangerous." 30.They submitted that releasing the Accused persons backto the Community where the witness lives and crime occurred would expose her to immense intimidation and coercion, whether direct or indirect. The fear is real and palpable, not mere suspicion as alleged by Defense. 31.The Court in Republic v Joktan Mayende & 3 others [2012] KLR recognized that the release of an Accused person can instill fear in witnesses making them reluctant to testify.“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.” 32.The Accused persons argument that they have "no capacity" to interfere is immaterial, the test is not perceived capacity but the reasonable likelihood of interference given the circumstances. The accused person's presence in the community is a strong tool of intimidation against a witness who must continue living there. 33.The Accused person's contention that the Affidavit is defective for lack of Commissioner's stamp is a technicality that elevates form over substance, contrary to Article 159 (2) (d) of the Constitution which mandates courts to administer justice without undue regard to procedural technicalities, a principle affirmed in Edward Kimani Mungai v Synergy Industrial Credit Ltd & 2 others [2021] KLR where the Court held that;_“It is undesirable to evict a party from the judgment seat” on technical grounds. The core function of the affidavit is to present sworn evidence, which the Investigating Officer’s signed affidavit fulfills. Analysis & Determination 34.I have considered the rival pleadings and submissions on the contested issue of grant of bail & bond granted or not granted to Accused persons pending the Trial. 35.It is settled that bail and bond is a Constitutional right and therefore granted except where compelling circumstances are presented by Prosecution. One is presumed innocent until proved guilty as provided by Article 50 (2) (a) of the Constitution. 36.Article 49 (1) (h) of Constitution provides for the right to bail from the time of arrest and final trial of a suspect/ arrested person. It also applies as a right to fair trial to persons who are already charged before court. 37.The right to bail can be limited where the prosecution proves compelling grounds. The court is also guided by various considerations listed under Section 123 (A) of the Criminal Procedure Code. 38.The Applicants in a nutshell plead innocence to present charge and depose that they are young men, not flight risks with fixed abode and the Prosecution has not proved compelling reasons but the circumstances presented are speculation. 39.The Applicants referred extensively to the case of Republic vs Wanjiku & Anor Criminal Case E002 of 2024 Thika HCT where similar circumstances arose; Accused persons charged with 3 counts of murder; I/O deposed that there was strong likelihood of Accused persons interfering with witnesses as they were family members and if suspects were released on bail/bond they would not testify freely on matters culminating to the offences. The 1st Accused did not demonstrate she had fixed abode and the Court dealt with the issue by issuing conditions and found the Prosecution failed to present cogent evidence to support the allegations of interference. Hon LJ F Muchemi granted stringent bond terms. 40.This Court is persuaded by the reasoning in the above-mentioned case; however, in the said case the matter related to family members involved in violence resulting in murder with regard to family property unlike the instant case the circumstances are different in that the offence occurred and it is alleged that eye witness witnessed the incident and knows the parties. 41.For good measure the Court will consider, the Accused persons alleged circumstances of the instant case and one is innocent until proved guilty through trial and especially because a minor is involved; Article 53 1 (f) & 2 of the Constitution is relevant and applicable here;(f)not to be detained, except as a measure of last resort, and when detained, to be held—(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that take account of the child’s sex and age.(2)A child’s best interests are of paramount importance in every matter concerning the child.Section 26 (7) & (8) of Children’s Act 2022 prescribe;(7)The detention of a child under this Act or any other written law shall be a matter of last resort and in conformity with Article 53 (f) of the Constitution.(8)A child who is apprehended and detained shall be accorded legal and other assistance by the State as well as contact with his or her family. 42.The Accused persons were ALL subjected to mental assessment and age assessment and 3rd Accused person/subject was found to have been underage as per Report presented to Court. 43.The Pre-Bail Report for the subject was the only one filed dated 8/4/2026. The Probation Officer upon conducting interviews found the subject an only child to his parents school going was in Form 1 at St Teresa of Calcutta Sec Sch in Lucky Summer. He did not engage in any form of substance abuse on the alleged offence, the subject seemed unaware and maintained non-involvement. Community ties the subject was/is not widely known has limited social networks and minimal public recognition. 44.The Victim’s family still have profound emotional loss of their kin he was their breadwinner and economic impact has been felt by family. The family incurred financial loss as they could not take the deceased to ancestral home to bury him and buried him in Nairobi Langata Cemetery. The family expressed strong desire for justice and closure. Disposition 45.This Court considers the rights of Accused persons and subject and balances these rights with those of deceased and family of deceased and witnesses. The Court and Prosecution have not expedited the hearing and heard the crucial witnesses and the Accused persons have been in custody. Due to inclusion of subject as part of Accused persons, in compliance with Constitutional and statutory rights the Court will grant bail and bond on the following terms;a)The 1st & 2nd Accused persons are granted bond of Ksh 300,000/- with I surety each or Cashbail of Ksh 50,000/- each with contact person with valid ID card or Payslip or Chief’s letter.b)The subject 3rd Accused person will be released on bond Ksh 100,000/- with 1 surety or Cash Bail of Ksh 20,000/- with Parent(s) or Guardian(s) ID Cardsc)They shall attend the Court whenever required to do so without fail.d)They shall not contact or intimidate, whether directly or by proxy, any of the witnesses in this case as per the witness statements and other documents that have been supplied by the State to the defense.e)They shall not leave jurisdiction of the Court.f)In the event that any of these conditions are violated, they are liable to have their bail cancelledand they shall proceed with the case while in custody. RULING DELIVERED SIGNED & DATED IN OPEN COURT IN CRIMINAL DIVISION AT NAIROBI THIS 13/7/2026.M.W.MUIGAIJUDGE