https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8066

Republic v Magoye alias Baba Queen (Criminal Case E052 of 2025) [2026] KEHC 8066 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 8066 (KLR) Republic of Kenya In the High Court at Makadara Criminal Case E052 of 2025 MS Shariff, J June 8, 2026 Between Republic Prosecution and Cypriano Magoye alias Baba Queen Accused Ruling A. Background 1.The accused person Cypriano Magoye alias Baba Queen was arraigned before this court on 26.11.2025 and was charged with the offence of murder contrary to section 2023 as read with section 204 of the Penal Code. 2.The particulars of the offence were that on the night of the 20th August 2025 at about 0030hours at H2 Apartment in Pipeline area within Embakasi Suc-County within Nairobi County the accused murdered Suan Nabwire Alias Mama Queen. 3.The prosecution opposed his release on bail vide an affidavit sworn on 23rd September 2025 by one Police Constable Cleophas Motanya of Director of Criminal Investigations, Embakasi, who deposed that the accused person had fled he scene after the alleged commission of the offence on 20.8.2025 and that he was apprehended after a man hunt on 22.8.2025 at Tassia area in the residence his friend. 4.Cleophas Motanya has further deposed that the accused person also faces a charge of rape in Makadara CM CR Case No E228 of 2025. 5.It is therefore the prosecution’s position that the accused person is a flight risk and is likely to interfere with the prosecution witnesses if released on bail/bond. 6.The accused person reacted to the prosecution’s opposition to his release on bail by way of written submissions dated and filed on 16th Dece3mber 2025. 7.On 11.5.2026 the prosecution was directed to file it’s submissions within 3 days from that date. So far none have been filed. B. Accused person’s submissions 8.The accused person has through his pro bono defence counsel, Sam Gare submitted that he has been charged with a bailable offence and that article 49 (h) of the Constitution of Kenya enshrines his right to bail while section 123A of the Criminal Procedure Code, sets the criteria for grant of bail or bond. 9.The accused posits that bail can only be withheld on exceptional circumstances and the burden of proving the existence of such exceptional circumstances lies on the prosecution, as he who alleges must prove. Reliance was placed in the decision of Justice Mohamed Ibrahim in Republic versus Danson Mgunya & Another, Mombasa High Court Criminal Case No 26 of 2008. 10.The accused person has maintained that the criterion for grant of bail is the whether the he would, when released on bail, return to court to stand trial. The case of Nganga Versus Republic (1985) KLR 451 has been cited in this regard. 11.It is further submitted by the accused person that his relationship with the state witnesses is not a consideration for grant or denial of bail. Reliance has been placed on the decision of Justice Mrima in Republic Versus Sifuna (Criminal Case No E014 of 2023) (2023) KEHC 22379 (KLR) ( 22 September 2023) (Ruling) , where the erudite judge held that the relation of a witness to an accused person cannot translate to an inference of interference with the witness; the prosecution must demonstrate likelihood of interference. 12.This court has been reminded of the accused person’s right of presumption of innocence as provided for under article 50(2) (a) of the Constitution. The case of Republic Versus Thomas Muthui Nzili, Criminal case No 13 of 2010 was cited in support of this constitutional principle. C. Analysis and Determination 13.I have considered the affidavit sworn by PC Cleophas Motanya, the submissions by the accused person and the pre- bail report prepared by Abdirashid Osman and filed herein on 24.10.2025 and the sole issue that arises for determination is whether the accused person is entitled to admission to bail. 14.It is indeed true that the accused person faces two criminal cases; the murder case in this file and a rape charge before the Makadara Chief Magistrate Criminal Case No E 228 of 2025, however both charges are bailable. 15.The statutory provision for grant of bail or bond are sections 123 and 124 of the Criminal Procedure Code that provide as follows :“123.Bail in certain cases(1)When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.(3)The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.123A.Exception to right to bail(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 protection124.Bail bondBefore a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and, when he is released on bail, by one or more sufficient sureties, conditioned that the person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or police officer.” 16.Article 49 (1) (h) of the Constitution of Kenya guarantees the right of an accused person to be released on bail or bond on reasonable conditions unless there are reasonable conditions impeding his release. 17.The prosecution has stated that he accused person is a flight risk given the fact that he had fled his residence after the alleged commission of the offences and that he was apprehended after two days in Tassia area. The fact that the police were able to arrest him in record speed is indicative of the fact that the accused had not fled outside the reach of the police. I am therefore not persuaded at he would take flight once admitted to bail. 18.The prosecution has also based it’s opposition to the release of the accused person on bail or bond on an apprehension that due to his relationship with the victims, he will interfere with witnesses. This apprehension has not been supported by any iota of evidence; it is not enough for the prosecution to presume that an accused person will interfere with witnesses who are related to him. The burden of proving the high probability of witness interference by the accused person lies on the prosecution’s shoulder. It does not shift to an accused person whose innocence is safeguarded under article 50 (2) (a) of the Constitution. Section 107 of the Evidence Act expressly provides that he who alleges must prove. 19.Whereas this court takes cognizance of the gravity of the offence that the accused person faces in this case, due regard must be had to his constitutionally enshrined rights as espoused hereinabove. 20.This court is also alive to the contents of the pre-bail report which has disclosed that the accused person is sero-positive (HIV +) and is under antiretroviral medication. His compliance with his treatment regime is best serve when his able to access the requisite medication. The remand settings may be unsuited for such access to treatment, yet article 21of the Constitution enjoins this court to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights, which rights include the right to the highest attainable standard of health as enshrined under article 43 (1) of the Constitution. 21.It is noteworthy that the pre-bail report reveals that the accused person’s relatives are willingly to stand surety for him, save for the relatives of the deceased who have supported the prosecution’s position that the accused should stand trial while in custody. 22.On the balance I do hereby find the prosecution has failed to make out a case of existence of exceptional circumstances that militated against the release of the accused person on bail. D. Orders 23.The orders that commend themselves to this court are as follows ;i.The accused person shall be released on bail of Kshs 2,000,000 and one surety of a similar amount.ii.The accused shall, upon his release, ensure that he retires to his home County of Busia and shall refrain from making contact either by himself or through proxies, with any prosecution witness.It is hereby so ordered. DELIVERED, SIGNED AND DATED AT MILIMANI THIS 8TH DAY OF JUNE 2026.M. S. SHARIFFJUDGEIn the presence of :AccusedMr Ochieng for the prosecutionMr Sam Gare for the accused personAnnastancia Nyambura – Court Assisstant