https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7294

Republic v Juma & 2 others (Criminal Case E021 of 2026) [2026] KEHC 7294 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7294 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Case E021 of 2026 PN Gichohi, J May 26, 2026 Between Republic Prosecution and Richard Wanjala Juma 1st Accused Micheal Kipsang Maritim 2nd Accused Elly Njuguna Kuria 3rd Accused Ruling 1.The three accused persons herein have been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 7th November, 2025, at Mosayet village, in Salgaa Area within Rongai Sub-County, in Nakuru County, Margaret Wambui Mwangi was murdered. They denied the charge, and a plea of not guilty was entered against each of them. 2.The Prosecution opposed their release on bond pending trial and relied on an Affidavit of the Investigating Officer No. 104789 PC Brian Makaga, sworn on 22nd April, 2026, wherein he averred that the matter herein was booked in Salgaa Police station vide OB No. 32/02/11/25 in relation to the said murder. 3.He stated that upon committing the offence of murder, the accused persons disappeared since November 2025 and have been on the run until 28th March, 2026, when they were arrested at Belrur, Nakuru County. It has taken a lot of resources to trace and flush out the accused person from their hideout deep into the suburbs of Nakuru County. He added that save for Elly Njuguna Kuria (3rd accused), the accused persons are a flight risk who are able to change their location from time to time since they don’t have any permanent residence. 4.It is his case that the accused persons have the capacity to interfere with witnesses, as some of the witnesses believe that their lives might be in danger if the suspects are released on bail and bond. Further, some suspects released on bail and bond might jeopardize their efforts to apprehend them, since they were partners in crime during the commission of the offence. 5.In a rejoinder, vide a Replying Affidavit sworn by the 1st accused ( Richard Wanjala Juma) on the 23rd April, 2026, he stated that he was arrested on 28th March, 2026 and arraigned in Court on 14th April, 2026. However, he did not take any plea as the prosecution was given more time to carry out investigations, thus he took plea on 22nd April, 2026. 6.He stated that he has cooperated with the Investigating Officer and thus no compelling reason has been given to deny him his right to bail guaranteed under Article 49 of the Constitution. He added that the charge of murder is not the only ground for an accused person to be denied bond/bail. 7.He contended that the assertion regarding his lack of a permanent residence is factually incorrect. He maintained that he is a long-term resident of the Salgaa area, situated near the Salgaa Police Station within Nakuru, which has served as his fixed and established abode for several years. 8.Regarding the allegation that he is a flight risk, he asserted that he has never absconded nor attempted to flee the jurisdiction of this court. Furthermore, he does not possess a passport or any other travel documents, rendering any attempt to leave the country impossible. He is, therefore, fully prepared to submit to the ongoing supervision of the Court. 9.He further emphasised his deep-rooted family ties within Nakuru County. He stated that as a husband and the father of two minor school-going children, he is the sole provider for his family. He stated that his children depend entirely on him for their financial, emotional, and general well-being, and they stand to suffer irreparable hardship should his bail application be declined. 10.In conclusion, he stated that he has no personal acquaintance with any of the individuals listed as prosecution witnesses. Consequently, the Prosecution’s apprehension regarding the potential for witness interference or meddling is entirely speculative and without merit. In light of these facts, he respectfully prayed that this court exercise its discretion to grant him favourable bail and bond terms. 11.The Bail/Bond Application was canvassed through oral submissions. The Prosecution, led by Mr. Wakasiaka, vehemently opposed the release of all three accused persons, primarily on the grounds that they constitute a significant flight risk. He argued that the accused remained at large for nearly five months following the alleged offence in November 2025, necessitating an extensive police operation to apprehend them in March 2026. 12.He further contended that their release would prejudice ongoing investigations aimed at arresting additional suspects. Regarding the 1st accused, the Prosecution highlighted a pending warrant of arrest from the Molo Law Courts in a separate case, suggesting a proven history of absconding. 13.Ms. Ngugi, for the 2nd Accused argued strongly for his constitutional right to bail under Article 49. She dismissed the flight risk allegations, noting that her client is a gainfully employed security guard at Kenya Power in Salgaa and a known resident of the area. She challenged the Prosecution's claim of witness interference as speculative and general, pointing out that the State had already declared investigations complete by bringing the matter to court for plea. She further argued that the 26-day detention prior to the plea violated her client's constitutional rights and suggested that the court employ restrictive measures, such as relocation or periodic reporting to a police station, instead of outright denial. 14.Mr. Tum Advocate for the 3rd accused, associated himself with Ms. Ngugi’s constitutional arguments, emphasising the presumption of innocence. He specifically pointed out that the Investigating Officer’s affidavit failed to mention the 3rd accused in its most damning paragraphs. 15.He highlighted that his client had already demonstrated a willingness to comply with the law by travelling from his home to attend court for the plea and had previously been released on cash bail in a related miscellaneous application. Furthermore, Mr. Tumu raised serious concerns regarding his client’s health, noting that the accused is hypertensive and diabetic and requires consistent medical attention. 16.Representing the interests of the victims' family, Ms. Macharia Advocate took a more nuanced stance. While she did not flatly oppose bond, she urged the court to impose stringent and restrictive conditions. She questioned the stability of the 1st and 2nd accused, describing them as casual labourers without permanent residences, and challenged the claim that the 2nd Accused was a direct employee of Kenya Power, suggesting he was instead outsourced. She also urged that the 3rd Accused provide verified medical records to support his claims of ill health. 17.Ms. Wandera for the 1st accused opted to rely on the 1st accused's Replying Affidavit, sworn on 23rd April, 2026, and submissions of even date. 1st Accused’s Submissions 18.It was submitted that under Article 49(1)(h) of the Constitution of Kenya , every accused person has a fundamental right to be released on reasonable bond or bail conditions unless compelling reasons for denial are established. This right is reinforced by Article 50(2) presumption of innocence, which dictates that pretrial detention should not serve as a form of punishment. 19.Accordingly, it was submitted that the 1st accused has a known place of abode with his family and that the prosecution has provided no evidence suggesting he is a flight risk. 20.While acknowledging the gravity of murder charges, he cited the case of Francis Keriako Muruatetu & Others to note that the mandatory nature of the death sentence has been overturned. He argued that in the current constitutional order, murder is a bailable offence. To support this, they rely on the ruling of Ibrahim, J(As he then was) in Republic v John Kahindi Karisa & 2 Others [2010] eKLR, which established that previous laws making capital offences non-bailable are now obsolete and inapplicable. 21.The Defence contended that the Prosecution's case currently rests on unsubstantiated allegations rather than tested evidence. Citing Republic v Joseph Kuria Irungu [2020] eKLR, they argue that the strength of a case should be appraised based on evidence actually adduced before the court, not merely on witness statements. Furthermore, they cite Republic v Danson Mgunya & Another [2010] eKLR to submit that evaluating the probability of guilt at this early stage is premature and inconsistent with the presumption of innocence. 22.The Defence maintained that the Prosecution has failed to demonstrate any compelling reasons defined in Republic v Robert Zippor Nzilu [2018] eKLR as forceful, convincing, and persuasive evidence to justify detention. It was argued that there are no adverse allegations regarding the 1st Accused's character or prior history of jumping bail. Also, the allegations of witness interference are implausible as the Prosecution has had ample time to conclude investigations and has not disclosed the identities of the witnesses at risk. 23.The Court was thus urged to explore less restrictive means to ensure trial attendance, such as requiring the accused to stay away from specific localities. 24.Emphasising that the burden of proof lies solely with the state to satisfy the court that the interests of justice require detention, reliance was placed on the case of Republic v Danson Ngunya & another [2010] eKLR, and further reference the case of Republic v David Nyasora Nyamongo Criminal Case No. 90 of 2010, and argued that the court's discretion should prioritise the presumption of innocence. 25.Lastly, the Defence urged the court to adopt the perspective found in the Nigerian case Saidu v State 1982 2NCR 4, which states that until proven guilty, individuals are entitled to live as free people. Therefore, that since the prosecution has failed to meet its burden on a balance of probabilities and humbly prays that the accused be admitted to bail. Analysis and Determination 26.This court has considered submissions by the parties for and against bail/bond, as well as the affidavits. the Constitution of Kenya guarantees the right to bail under Article 49(1)(h), which provides that an arrested person has the right “to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.” 27.This constitutional right is further reinforced under Section 123A of the Criminal Procedure Code, which provides that;-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.Nature or seriousness of the offence;b.The character, antecedents, associations, and community of the accused person;c.The defendants record in respect of the fulfilment of obligations under previous grant of bail;d.The strength of the evidence of his having committed the offence2.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 if released on bail, it is likely that he would fail to surrender to custody;b.Should be kept in custody for his own good. 28.Further, the Bail and Bond Policy Guidelines(2023) provide that to determine whether compelling reasons exist to deny bail, the courts should apply the following considerations:i.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.ii.Character and antecedents of the accused person.iii.The strength of the prosecution case.ivThe failure of the accused person to observe bail or bond terms.vLikelihood of interfering with witnesses.vi.The need to protect the victim or victims of the crime.vii.The relationship between the accused person and potential witnesses.viii.Child offenders.ix.The accused person is a flight risk.x.Whether the accused person is gainfully employed.xi.Public order, peace or security; andxii.Protection of the accused person. 29.In this case, the Prosecution opposed the release of the accused persons on bail by characterising them as significant flight risks who had been on the run for over five months, from the date of the alleged offence on 2nd November 2025 until their eventual arrest on 28th March 2026. They further contended that the accused persons might interfere with ongoing investigations aimed at apprehending other suspects still at large. 30.Additionally, the Prosecution highlighted that the accused are linked to another matter, being Molo Magistrates Court Criminal Case No. E021 of 2026, and specifically noted that the 1st accused is the subject of an active warrant of arrest from the Molo Law Courts. 31.Lastly, the Prosecution challenged the Defence’s claims of local residence, arguing that if the 1st and 2nd accused truly lived in Salgaa, they would have been apprehended much sooner. 32.As rightly put by the defence, the presumption of innocence as provided for by Article 50 (2) (a) of the Constitution is a cornerstone of our criminal justice system. The strength of the Prosecution’s case remains untested at this preliminary stage, but the court has to balance the competing interests of the State and the accused persons. 33.While acknowledging the gravity of the murder charge, this Court has also upheld the constitutional sanctity of Article 49 (1)(h) of the Constitution that the accused persons have a right to bail unless there are compelling reasons to deny them bond. 34.In this case, this court is persuaded that there is an active warrant of arrest against the 1st accused in Molo law Courts and hence, he is a flight risk. 35.The 2nd accused appears to have established ties to the community as a gainfully employed security guard, while the 3rd Accused has demonstrated a level of cooperation by attending court for his plea despite his reported health challenges. 36.In the circumstances, this court makes the following Orders:-1.The 1st accused is denied bond at this juncture due to a warrant of arrest pending before the Molo Court in another matter.2.The 2nd and 3rd accused are each admitted to a bond of Kshs. 1,000,000/= with a surety of a similar amount or a cash bail of Kshs. 500,000/=.3.The accused persons are prohibited from contacting any prosecution witnesses, either directly or through proxies.4.None of the accused persons shall leave the jurisdiction of this Court without leave of the Court.5.The 2nd and 3rd accused are to report to the Salgaa Police Station once a month until further directions by this Court. DATED, SIGNED AND DELIVERED AT NAKURU THIS 26TH DAY OF MAY, 2026.PATRICIA GICHOHIJUDGEIn the presence ofMs Anyumba for the Prosecution1st, 2nd and 3rd accusedMs Macharia watching brief for the complaint/familyWandera for the 1st accusedMs Ngugi for the 2nd accusedMr. Tumu for 3rd accusedErickson, Court Assistant