Republic v Kahindi Kitsao

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL CASE NO. E008 OF 2026** **REPUBLIC.......……….…………..…..……………………………………..........PROSECUTION** **VERSUS** **KAHINDI KITSAO ……………………………...……….…….……………………….ACCUSED** **RULING** 1. The Accused herein is facing the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 6.7.25 at around 1930 hours, at Palakumi location, Ganze subcounty, Kilifi county, the Accused murdered Baraza Kitsao Katana (the deceased). The Accused has been in custody since he was arrested in April 2026. 2. By an Application dated 27.8.26, the Accused seeks the following orders: 3. ***The Honourable Court be pleased to deem the oral application for bail and or bond made on behalf of the Accused/Applicant upon taking plea on 27th April 2026 as remaining pending and now formalized through the present application for consideration.*** 4. ***The Honourable Court be pleased to hear and determine the Accused/Applicant’s pending application for bail and or bond notwithstanding the non-filing of the prebail report which was only meant to assist the court exercise its discretion.*** 5. ***The Honourable Court be pleased to admit the Accused/Applicant to bond on reasonable and proportionate terms and conditions unique to his circumstances as may be required to secure his attendance before the Court.*** 6. ***The Honourable Court be pleased to issue orders directing the office of the Area Chief - Mariani–Kasimbijini, within Kilifi County, to furnish the Court with such factual information as is within her official knowledge concerning the Applicant's residence, family circumstances and community ties within the locality, within seven days or such other period as this Court may direct, whichever is shorter.*** 7. ***In the alternative to Prayer 5, the Honourable Court be pleased to issue orders directing said Area Chief to appear before this Honourable Court and furnish such factual information as may be within her official knowledge and as the Court may consider relevant to the determination of the Applicant's application for bail and or bond.*** 8. ***The Honourable Court be pleased to issue such further or consequential directions as may be necessary for the just, expeditious and effective determination of the Applicant's pending application for bail and or bond.*** 9. When the Accused took plea on 27.4.26 and pleaded not guilty, an oral application for bond was made on his behalf. The Prosecution opposed the Accused’s application for bond. The ground proffered was that the offence with which the Accused is charged was committed on 6.7.25 and that the Accused fled, only to be arrested in March, 2026. 10. The Court then directed that a pre-bail report be prepared and filed by 18.5.26 and that the affidavit opposing bond be filed by 8.6.26. When the matter was mentioned on 23.7.26, neither the pre-bail report nor affidavit in opposition to bond had been filed. The matter was stood over to 27.10.26 for directions on the application for bond. It would appear that the delay in the filing of the pre-bail report has prompted the present Application. 11. On 2.9.26, the Court directed that the Application be served by 3.9.26 and that a response be filed by 7.9.26. The Application was duly served as directed but when the matter came up for directions on 9.9.26, the Prosecution had not filed a response and sought to do so in 3 days. The Court noting the history of the matter directed that the response be filed and served by 10.9.26. 12. The pre-bail report was filed on 9.9.26. It contains the bail information required by the Court. Accordingly, payers 4 and 5 of the Application are now moot. 13. The pre-bail report indicates that the deceased has a fixed abode in Kasimbijini village, Mariani. He is married to 2 wives and has 14 children. He has strong community ties and has no previous criminal record. His family expressed willingness to stand surety for the Accused and to ensure that he attends court, as and when required. 14. The report however noted that the deceased was a step brother to the Accused and both families including key witnesses live within the same compound. Further, that the deceased’s family expressed fear that the release of the Accused may influence or intimidate witnesses and affect their attendance in court. Additionally, that the deceased’s son Hamisi Baraza raised safety concerns for his family arising from threats made to his family members by the Accused, who the Accused believed were responsible for his arrest. Similarly, Maryani Rogers Mramba, the local administrator expressed concerns of the risk of witness interference. The report further indicates that key witnesses in the matter are close family members and have expressed fear of retaliation, intimidation or undue influence in the event the Accused is released on bail/bond. 15. The right to bond/bail is guaranteed under Article 49(1)(h) of the Constitution which provides: 16. ***An arrested person has the right*** 17. ***to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.*** 18. The Constitution has not defined “compelling reasons”. However, our courts have defined 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.*** 1. The right to bail/bond is not absolute. Where the court forms a strong opinion that there exist circumstances that are forceful and convincing, bail/bond will be denied. 2. The Court is aware that the Prosecution did not file an affidavit in opposition to bond in spite of being given an opportunity to do so. This notwithstanding, the Court takes into account the pre-bail report which was filed pursuant to its direction. Any information in the pre-bail report from the investigating officer is however disregarded given that he chose not to file the said affidavit. The report has enabled the Court to appreciate the situation on the ground. The apprehension expressed that release of the Accused on bond may result in interference with witnesses is not farfetched. 3. Courts have determined that the likelihood of interfering with witnesses is a compelling reason to warrant denial of bond. In **Republic v Taiko Kitende Muinya [2010] KEHC 4121 (KLR)**, Ochieng, J. (as he then was) stated: ***And if the accused was a person who was either related to the witnesses or a person who stood in a position of influence vis-à-vis the potential witnesses, there could arise a legitimate anxiety about the impact he might have on the witnesses, if he was released pending trial.*** 1. The circumstances herein are that the Accused is charged with the serious offence of murder. He and the deceased were stepbrothers. The 2 families including the deceased’s family members who are witnesses, reside in the same ancestral homestead. The Accused has been, or will be supplied with witness statements and the identity of the witnesses and their testimony is, or will be known to him. As such, the risk of the Accused returning home and interfering with witnesses cannot be gainsaid. His release on bond will create an opportunity for contact with the witnesses before and throughout the trial. Additionally, the Accused and witnesses will be coming from the same homestead to attend court for hearing. All this will no doubt compromise the course of justice. 2. The foregoing are in my view compelling reasons as contemplated under Article 49(1)(h) of the Constitution to warrant denying the Accused bail/bond. Accordingly, the Application is dismissed and bail/bond is denied for now. **DATED SIGNED and DELIVERED in MALINDI this 14th day of September 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**