https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11604

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL CASE E050 OF 2024** **REPUBLIC-----------------------------------------------------------PROSECUTION** **VERSUS** 1. **TONY WANJALA MALALA alias TONY--------------1ST ACCUSED** 2. **BECKHAM MULEMA AVUKUSI alias BECKHAM--2ND ACCUSED** **RULING ON REVIEW OF BAIL** 1. The accused persons are charged with the offence of Murder under Section 203 as read with 204 of the Penal Code. 2. The prosecution has since closed its case and the matter is pending ruling on whether or not the accused persons have a case to answer. 3. The court had denied bail on account of an objection by the prosecution who had alleged possible witness interference and the security of the two accused persons as compelling reasons for the denial of bail in line with Article 49 of the Constitution. 4. The court agreed with the prosecution’s contention that interference with witnesses as well as the safety and security of the accused persons are important considerations whenever a court is called upon to exercise its discretion on the matter of bail. 5. The prosecution had identified one witness whom they said was crucial to their case and whom this court directed the prosecution to ensure that he was placed under witness protection. 6. However, despite the order it turned out the witness was still not under the witness protection program and he eventually did not appear to testify after he was stood down to allow him to be placed under protection. 7. The last thing the court heard about the witness was that he was somewhere in Siaya attending a burial of an unnamed relative. The prosecution therefore closed their case without calling the witness. 8. The applicants have hinged their applications under Article 49 (1) (h) of the Constitution as read together with Section 123 of the Criminal Procedure Code and urged the court to review its earlier orders declining to grant bail. 9. The prosecution in opposition to the application argued that if the two accused persons were to be released on bail they would be exposed to the risk of harm by members of the public because at the time of arrest they were literally at the verge of being killed by a marauding mob which had already set upon them. 10. According to the prosecution the two accused persons were rescued from the hands of the angry members of public by the police. 11. The prosecutor argued that if the two were to be released back to the community there was most likely going to be a breach of peace and public order in the locality where they lived. 12. The failure by the prosecution to place the witness they had said was under threat under the witness protection program, confirmed to the court that indeed there was never such a threat in the first instance. 13. The prosecution urged the court to find that circumstances had not changed to warrant the release of the accused persons on bail. However, this court does not think so given that all the prosecution witnesses have testified and there cannot be any threat to the witnesses. 14. The defence countered the argument by the prosecution by arguing that the two accused person are not a flight risk thus bail should not be denied. 15. The defence counsel told the court that the two accused persons have a fixed abode and they would be willing to comply with all the conditions the court would impose. 16. According to the defence the reasons given by the prosecution for the continued detention of the accused do not meet the threshold of compelling reasons to warrant the denial of bail and that the court should be persuaded that circumstances have since changed in favor of granting the accused persons bail. 17. The accused persons further argued that they do not pose any danger to the public and their release on bail is not likely to trigger any problems in the community. 18. Counsel for the accused boldly argued that the accused persons are capable of defending themselves should that become necessary thus the court should not hold them in custody pending trial any longer. 19. The defense further argued that the right to bail under Article 49 (1) (h) of the Constitution is a constitutional right which is inalienable and should not be whimsically denied. The prosecution must prove on a balance of probabilities that there are compelling reasons for the court to deny an accused person bail. 20. The Court of Appeal in **Michael Juma Oyamo & another v Republic [2019] eKLR** adopted the definition of the phrase “compelling reasons” in the case of **R v Joktan Malende and 3 Others** **Criminal Case No. 55 of 2009** where the Learned Judge held as thus; - **“….. 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 standards set by the Constitution.”** 1. The Court went further to lay down some of the compelling reasons to include the likelihood that the accused will fail to attend court; commit or abet the commission of, a serious offence; endanger the safety of victims, individuals or the public; interfere with witnesses or evidence; endanger national security or public safety; and where it is necessary for the protection of the accused. 2. The court has heard evidence that indicated that police officers rescued the accused persons from irate members of the public who would have otherwise lynched the accused. The action by members of the public at the time was understandable in that any killing would provoke angry public reaction. 3. The reaction cannot therefore be said to be anything out of the ordinary because members of the public once confronted with a situation of death attributable to an identifiable individual, their immediate desire would be to meet out instant justice by taking the law into their own hands and that is precisely what appears to have happened in this matter. 4. The fear by the prosecution has obviously dissipated with time considering that all prosecution witnesses appeared before this court and testified with ease and there has not been any palpable fear from the witnesses to suggest that there are tensions between them and the accused persons. 5. The accused persons are clearly not exposed to any danger of harm and in this court’s view in line with Section 123 there would be no reason to continue holding the accused persons in custody. The accused persons have not expressed any fear either. 6. The Bail and Bond Policy Guidelines under section 4.9 further lists the factors to be considered in determining what compelling reasons are and includes; - **a)**The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty **b)**The strength of the prosecution case **c)**Character and antecedents of the accused person **d)**The failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bond **e)**Likelihood of interfering with witnesses **f)**The need to protect the victim or victims of the crime from the accused person **g)**The relationship between the accused person and potential witnesses **h)**Child offenders **i)**The accused person is a flight risk **j) Whether accused person is gainfully employed** **k)**Public order, peace or security. **l)**Protection of the accused person. 1. The prosecution had made a strong case that met the threshold of compelling reasons in the first instance as contemplated under Article 49 (1) (h) read together with the Bail and Bond Policy Guideline. However, overtime circumstances have changed. Liberty is precious and it must never be trivialized. **See Danson Mgunya $ Another Vs Rep (2010) eKLR** 2. The court was treated to what this court could safely describe as a theatre of the absurd. On the one hand, the witness who was allegedly likely to be in danger if the accused persons were released on bail was contacted by the Witness Protection Agency at the instance of the prosecution for purposes being offered protection but he declined to appear before the agency. 3. The lack of willingness by the witness to be placed under protection therefore created a serious doubt in the mind of the court as to the veracity of the claims of possible witness interference. The witness never appeared even after the court indulged the prosecution and even offered to hear him virtually. 4. The conclusion that this court drew from that failure by the witness was that after all, the intention of raising the security issues was to ensure that the accused persons remained behind bars. 5. The court would be failing in its duty if it does not assert itself and make it clear that the liberty of an individual is precious and must be respected by all including potential prosecution witnesses. It matters not what the public thinks about the accused person because in the eyes of the law under Article 50 (2) of the Constitution the accused is presumed innocent until proven to be guilty. 6. The court therefore finds that there is no longer any plausible reason to continue holding the accused persons in custody as the matter progresses. 7. Accordingly, the court hereby admits each of the accused persons to;- **a).** A bond of Ksh 500,000 plus one surety of a similar amount each; **b).** Each of the accused persons shall provide their telephone contacts to the Deputy Registrar of this court and they shall retain the numbers in active use until the matter is heard and determined; **c).** the accused persons are hereby directed to avoid any contact with the victims family and any attempt to do so will lead to the automatic cancellation of their bond. **d).** each of the accused persons is to leave a copy of their ID with the court and provide details of the fixed abode. 1. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **16TH** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Biko h/b Ms Dela for state Mrs Kimani absent Ms Mikuru for Respondent