Republic v Maina alias Kingangi & another (Criminal Case E065 of 2024) [2026] KEHC 13016 (KLR) (17 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL CASE NO. E065 OF 2024** **REPUBLIC--------------------------------------------------------- PROSECUTION** **VERSUS** **SIMON MWANGI MAINA ALIAS KINGANGI---------------1ST ACCUSED** **MUSINGI VULI------------------------------------------------------ 2ND ACCUSED** **RULING ON REVIEW OF BAIL** 1. Theaccused person was charged with the offence of Murder contrary to Section 203 as read with 204 of the Penal Code Cap 63 Laws of Kenya 2. Theparticulars of offence being that SIMON MWANGI MAINA ALIAS KING'ANG'I and MUSINGI IVULI on the 2nd October, 2024 at Bee Centre at Umoja Two Zone Nine area, Makadara Sub County within Nairobi County jointly with others not before court murdered FRANCIS ODUOR OMONYO ALIAS JAHOME 3. The accused persons applied for bail which was granted by this court on 2025-04-24 The court granted the following terms and conditions; - 4. Each of the accused persons shall be released on a bond of Kshs. 100,000 plus 2 sureties of similar amount. 5. Each accused person shall provide details of his fixed abode. 6. Each accused person shall provide to contact of at least one blood relative who may be reached by the state should the accused be required to appear before the court. 7. The person whose contact is provided to the court shall avail a copy of his or her national identity card. 8. The accused persons shall not live the jurisdiction of the court without leave of the court. 9. Each accused shall provide his telephone contacts and he shall maintain the number so provided throughout the trial. 10. That following the orders of this court the prosecution filed an affidavit sworn on 9th of July 2025 seeking the cancellation of the bail citing fears that if the two accused persons were to be released on bail, that would dissuade civilian witnesses from appearing and giving evidence in this, matter. The affidavit was sworn No. 85414 Corporal Fred Onduso of DCI Buruburu. 11. The officerinformed the court that one Patrick Mbugua Mburu D5 who was scheduled to testify before court was confronted by four men whom he said were unknown to him and according to information given to Corporal Onduso the men beat up the witness telling him that they knew he was a witness in this case. The officer went further to state that on the 2nd of June 2025 the said Mburu made a report at Soweto Police Station vide OB Number 22/2/26/2025 regarding the assault. 12. The witness appeared before the court on 3rd of June 2025 and he was sent to the Investigating Officer for further investigations of the complaint whilst the two accused persons remained in custody. The investigating officer urged the court to vary the bond terms and ensure that all civilian testified as a matter of priority in this case. 13. Subsequently , on 26th November 2025 counsel Clinton Litwaji Mwale filed an application dated 3rd November 2025 seeking to have details of Patrick Mbugua Mburu provided since according to Mr. Mwale’s client Patrick Mbugua Mburu is the in-law and an employee of one Michael Thiongó Kinyanjui an accused person in High Court Case No. HCCR 27 OF 2018 before the Hon. Justice Kimondo and in that case Simon Mwangi Maina Alias King’ang’i’s brother is a key witness thus according to them the allegations of witness interference in this matter were a calculated move by the prosecution to ensure that Simon Mwangi Maina Alias King’ag’i is kept in custody. Counsel further sought to have officers from the Principal Registrar National Registration Bureau appear in court and clarify to the court who is the person registered under Identity Card Number 28113797 which was the ID number indicated in the statement of D5 since according to Mr. Mwale the ID number did not belong to Patrick Mbugua Mburu. 14. The court allowed the request by the defence to have the registrar provide details of the holder of the ID number in question and vide a letter dated 28th April 2026 an officer by the name Filbert Liwa for the Secretary National Registration Bureau informed the court that ID Number 28113797 belonged to one Agnes Mugure Munge thereby confirming the allegations by counsel for the 1st accused. 15. At the hearing of the application by the prosecution to vary the bail terms Ms Dela prosecution counsel placed reliance on the affidavit of CPL Onduso and relied entirely on the contents of the same urging the court to find that there was indirect interference with the witnesses by the accused persons thus there was a compelling reason to vary the terms until all civilian witnesses will have testified. The arguments by Ms Dela were made on 5th of May 2026 and on that day the court summoned D5 Patrick Mbugua Mburu to appear in court on 28th July 2026 and testify even as the court reserved the court on review of bail for 29th July 2026. 16. On 28th July 2026 Mr. Naulikha prosecution counsel appeared in place of Ms Dela and indicated that he had two witnesses who were ready to testify and that the two did not include D5 who had been summoned by the court and who was allegedly the subject of indirect interference by the accused persons. Interestingly the two witnesses lined up to testify that day by the prosecution were persons whose statements had not been supplied to the defence and the matter could therefore not proceed for reasons of late disclosure. The matter was adjourned to 29th July 2026 for hearing but Mr. Patrick Mbugua Mburu D5 did not attend court and informed the court from the bar that the witness was not available for he had gone to donate blood at Kenyatta National Hospital. 17. Counsel however did not tell the court whether was still available on that day since blood donation is a few minutes exercise and the court would have expected that he would create time to appear in court as required. Ms Dela further informed the court that although she had two witnesses, there were eight more witnesses who would be called meaning therefore this matter having been filed on the 4th of November 2024 and given that not a single witness has testified to date was likely to be delayed. Ms. Mateo and Mr. Mwale urged the court not to vary the bail terms as per the request by the prosecution and find that D5 Patrick Mbugua Mburu had provided and ID Number in his statement that does not belong to him thus his character had already been cast in doubt by virtue of that fact. 18. Counsel urged the court not to allow the prosecution use the denial of bail as some form of punishment to the accused persons since they enjoy the presumption of innocence. Citing the case of Republic Vs. Chief Inspector Peter Muthee Gathigu Criminal Case No. E019 of 2024 counsel urged the court to weigh the fears of the prosecution against the presumption of innocence of the accused person and find that the scales of justice tilt in the favor of upholding the right to bail. 19. The defence team further argued that there was no direct evidence linking the two accused persons to the purported attack on Peter Mbugua Mburu and that the allegations are unfounded in law. The court was referred to the case of **Republic V Muneer Harron Ismail & 4 Others [2010] KEHC 4096 (KLR)** where Warsame J (as he then was) held: ***“It is also important to understand that no one has the ability to identify offenders unerringly, thus justice requires an impartial mind to consider whether the suspicion of the detaining authority carries a high degree of reliability such that pre-trial detention should be ordered. Pre-trial detention is an assault to the liberty of an accused person, in circumstances where the evidence available calls that he or she be released on bail pending the hearing and determination of his case. It is important to note that liberty of a citizen is a cherished right, it is inalienable, it is indefeasible, it is incorrigible, and it should not be curtailed ordinarily except on consideration of public interest.*** ***In deciding whether or not to grant bail, the basic factor or denominator is to secure the attendance of the accused person to answer the charges brought against him. The court has to take into consideration various factors and circumstances and one paramount consideration, is whether the release of the individual will endanger public security, safety and the overall interest of the wider public.”*** 1. According to the defence, the prosecution failed to substantiate the allegations of witness interference by the accused persons or their associates in this matter thus the court was urged to uphold its earlier ruling on bail and further consider providing an alternative of cash bail in the sum of Kshs. 200,000 as well as reduce the bond by Kshs. 500,000. **ANALYSIS AND DETERMINATION** 1. The right to bail is a constitutional right to an accused person under Article 49 1 (h). The court in determining whether or not to grant bail should primarily concern itself with the question of whether or not the accused person would return to court to face the trial upon release on bail. 2. the detention of an individual pending trial should be should be an act of last resort if there are no compelling reasons to deny bail an accused person ought not to be held in pre-trial detention. The right to a fair trial includes the right to bail pending trial. Once the liberty of an individual is taken the private life on an individual is disrupted and put in at a great disadvantage for he has to organize and prepare his defence from the confines of the prison where he has no free access to his counsel and potential defence witnesses. The accused person’s private life is immediately put to a halt as he awaits trial. It is against this background that **Article 49 1 (h)** requires that before bail can be denied compelling reasons must be provided by the state. 3. In this case the court has already exercised its discretion and made a decision to grant the accused persons bail thus what the prosecutions effectively asking for is a cancellation of the bail orders citing indirect interference with witnesses by the accused persons. The allegations of witness interference is a serious matter and should never be made casually. If indeed the state was serious about the alleged interference with witnesses nothing would have been easier than for them to have availed D5 Patrick Mbugua Mburu on the 28th and 29th of July 2026 to support the allegations if indeed CPL Onduso believed that the accused persons had anything to do with the alleged incident reported by Mr. Patrick Mbugua Mburu. 4. This is particularly important considering that the statement by Mr. Mburu bears an ID Card Number of a lady whom this court is yet to be told her role in this matter and also for the state to offer an explanation as to how D5 ended up using her ID number purporting it to be his. 5. The burden of proof as to what amounts to a compelling reason to deny bail rests on the prosecution it cannot simply stop at mere allegations and the prosecution assumes that the court would accept such allegations at face value. 6. To allege that persons sitting in custody have influenced other persons outside the prison to interfere with witnesses one would require some tangible evidence that connects the accused persons to the individuals alleged to be acting at their behest outside the prison to intimidate witnesses. 7. The link could include some phone call evidence or other connection between them but it cannot be on the basis of a generalized claim by the state. 8. In this matter if the allegation was that serious nothing would have been easier than for Patrick Mbugua Mburu to swear an affidavit in support of the request by the state for cancellation of bail. 9. He too would have appeared as ordered by the court and authenticate the claims in open court as he gave his evidence. 10. The witness having avoided court, the court is left wondering whether indeed it would be proper to accept the allegations by the state without further proof more so considering the matter of the identity card number brought out by the defense. 11. Interference with witnesses must be direct or indirect backed by evidence. The burden of proof is on the prosecution to prove grounds that are strong, compelling, convincing, forceful such that the grounds are not be flimsy or speculative. 12. In the case of [***Republic v Harrison Njue Njogu***](https://kenyalaw.org/akn/ke/judgment/kehc/2014/5397)**Criminal Case No 9 of 2015** the court held that compelling reason would be such a reason that is forcefully convincing to persuade the court to believe that something is true. 13. In this case the mere presentation of an OB report would not be sufficient. The police ought to have also demonstrated to the court the steps taken to investigate the incident if at all it happened and what were their findinds. The court notes that the alleged incident occurred over a year ago. 14. The court in deciding on the question of bail exercises judicial discretion. The exercise of judicial discretion must be judicious and sound factual and legal basis as opposed to suppositions and conjecture. In the case of [**Victor Kiprono Ngeno –Vs- Office of the Director of Public Prosecutions**](https://kenyalaw.org/akn/ke/judgment/kehc/2021/6914)**[2021] eKLR** the court held that such an exercise of discretion requires a holistic approach and the court must, in close circumspection, take to account the circumstances of the case and the accused person individually. 15. The main factor in granting bail is whether the accused persons will turn up for trial if he released, put differently is whether they will comply with conditions of bail or whether the criminal trial will be affected. 16. The court having arrived at a decision to grant bail, cancellation of those orders must be on a proper factual and legal basis. 17. The defense urged the court on its part to vary the bail terms downwards and consider granting a cash bail as an alternative besides reducing the figure from Ksh. 1Million Bond. 18. The court has not been told the effort made to raise the Ksh 1 Million bond and a surety. 19. This court expected some material on the personal circumstances of each accused to consider whether to reduce the figure but none of that was placed on record. 20. Accordingly, the court finds that there is no proper basis laid by the prosecution as well as the defense to vary the bond terms. 21. The upshot of the above is that the terms of bail earlier on granted by this court are hereby upheld and the accused persons are directed to ensure that once released on bail they should not return to the locus in quo and should avoid any contact with the prosecution witnesses otherwise the bail shall be cancelled. 22. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **17th** day of **AUGUST, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Okusimba for state Mateo for 2nd Accused Mateo holding brief Mwale or 1st Accused