https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8394

Republic v Mbathi (Criminal Case E001 of 2026) [2026] KEHC 8394 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8394 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Case E001 of 2026 LN Mutende, J June 9, 2026 Between Republic Prosecution and John Gakunga Mbathi Accused Ruling 1.John Gakunga Mbathi, the Accused, is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence are that on the 12th December, 2025, at Nyahururu Stage, in Nyahururu Sub-County, within Laikipia County, murdered Kelvin Warutere (Deceased). 2.The Accused denied the information presented by the Director of Public Prosecutions (DPP), therefore seeks to be released on bond/bail pending trial. 3.Relying on Article 49(1) (h) of the Constitution, and, the bond and bail policy guidelines, learned Defence Counsel Mr. Wangondu urged that the Accused meets the threshold for the grant of reasonable terms of bond as the presumption of innocence lies with him. That the Accused is not a flight risk as he has a permanent place of residence, he is a first time accused person who has never been involved in any criminal act. And, being a patriotic Kenyan with no previous record has a duty to attend court. 4.Pursuant to the provisions of Section 9 and 10 of the Victim Protection Act, this court sought the input of the Probation Officer who filed a pre-bail report that the Prosecution also relies on. The family of the Accused represented by their mother who was the only one willing to be interviewed noted that the community is hostile as they vowed to kill him, if released on bond, especially at the 4NTE matatu Stage. 5.The deceased was 22 years old at the time of his death. The family of the deceased has suffered emotional distress and fear for their lives if the Accused is released on bond. That after the act the Accused fled and was only found following intervention of the police. 6.On the part the community, the Accused is well known to the area administration for having committed various crimes including theft. And while serving a non-custodial sentence he absconded and was turned in by his own family. The 4NTE matatu officials’ sentiments were that the Accused has a history of committing crimes at the Stage. That he thrives in mugging people. 7.It is hence the recommendation of the Probation officer that bail be deferred due to safety concerns of the Accused. 8.The State through learned Prosecution Counsel, Ms. Mumbe noted sentiments by the probation officer but does not oppose release of the Accused on bond. 9.The defence submits that the safety of Accused is guaranteed unless cogent reasons are given. That there is no historical evidence of being arrested and absconded. 10.I have considered rival submissions, as well as the Pre-bail Report. It is an accused person’s right to be released on bond pending trial unless circumstances exist that require his incarceration during trial. Article 49(1)(h) of the Constitution provides thus;(1)An arrested person has the right--(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. 11.Although the Constitution and statute are silent on what exactly is compelling reasons; In Republic v Joktan Mayende & 3 Others [2012] KEHC 5551 (KLR) the court stated that;“...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.” 12.The Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25 sets applicable procedure to the question of bail. It provides for circumstances under which an accused person may be denied bail thus;The following procedures should apply to the bail hearing:a.The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:b.That the accused person is likely to fail to attend court proceedings; orc.That the accused person is likely to commit, or abet the commission of, a serious offence; ord.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ore.That the accused person is likely to endanger the safety of victims, individuals or the public; orf.That the accused person is likely to interfere with witnesses or evidence; org.That the accused person is likely to endanger national security; orh.That it is in the public interest to detain the accused person in custody.” 13.Section 123A of the Criminal Procedure Code provides;(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 protection. 14.All these culminate into the fact that an accused person can only be denied bail if the State/Prosecution proves existence of compelling reasons. In Ng’ang’a v Republic [1985] KLR 451 Chesoni J. (as he then was) stated thus;“ 1.The court, in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (cap 75), should consider the following factors: a.In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that:i.The accused will fail to turn up at his trial or to surrender to custody;ii.The accused may commit further offences; oriii.He will obstruct the course of justice.” 15.Of paramount importance when considering whether or not to grant bail is the question whether the accused will turn up for trial; the instant charge being murder has serious consequences in the event of conviction. However, the State does not put forth any reason why the accused should be denied bail. 16.Article 50(2)(a) of the Constitution provides;(2)Every accused person has the right to a fair trial, which includes the right—a.to be presumed innocent until the contrary is proved; 17.An accused person is guaranteed the right to be presumed innocent until found guilty by a court of law. It would be wrong for an individual to be subjected to pre-trial detention that is why there is need to balance the right of the accused person and that of the victim.a.It is alleged that the Accused persons’ safety is at stake as he is viewed as a nuisance, thief and mugger. All these are allegations without evidence in support. Therefore, there is no forceful or convincing reason requiring the Accused person to be denied bail. For that treason, I grant the Accused Bond of Kenya Shillings Two Million (Ksh.2,000,0000/-) with two sureties in a like sum. 18.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2026.……………………L.N. MUTENDEJUDGE