Republic v Mbevo (Criminal Case E016 of 2026) [2026] KEHC 9981 (KLR) (25 June 2026) (Ruling)

Republic v Mbevo (Criminal Case E016 of 2026) [2026] KEHC 9981 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9981 (KLR) Republic of Kenya In the High Court at Makadara Criminal Case E016 of 2026 J Wakiaga, J June 25, 2026 Between Republic Prosecution and Muasya Mbevo Accused Ruling 1.The accused was charged with murder, the particulars of which were that on the 7th day of February 2026 at 1830 hours at Thome area in Kasarani within Nairobi County murdered Julius Muem. 2.He pleaded not guilty and in compliance with article 49 of the constitution , the prosecution through PCL Patricia Mueni filed an affidavit opposing bond and stated that some prosecution witnesses were known to the accused person having interacted with them in the same locality of Thome and there was a high likelihood that he will coarse threaten intimidate , influence and or interfere with them should he be released on bond. 3.It was contended that there was no proof that the accused has a fixed place of abode save for his rented house. 4.The accused in response stared that he had a fixed place of abode at thome with an alternative residence at his parents place in Kaliaka Tune village in Kitui County and was not likely to flee the courts jurisdiction and neither did he intend to threaten, intimidate or interfere with witnesses. 5.The court called for pre-bail report wherein it was stared the accused mother and most of his siblings resides at the family rural home who were willing to support the accused should he be granted bond. The accused was married with three children and used to work as a house keeper at safari park hotel before he left on account of lower pay. 6.On the community ties he was known to the local administration and had no objection to his release on bond. The investigating office on the other hand opposed the release of the accused on bond. 7.On the victims concern the deceased was a father of three and a friend and drinking mate of the accused. He was employed as a watchman. They did not raise any objection to the release of the accused on bond. 8.At the hearing hereof Mr. Ochieng for the prosecution stated that whereas the pre-sentence report recommended the release of the accused on bond it dud not respond to the issue of witness interference and lack of fixed place of abode and that bond should be held in the abeyance until the key witnesses had testified. 9.Ms Nyambeki for the accused submitted that the accused had responded to the issues raised by the prosecution and that the pre-bail report supported the release of the accused on bond. Determination 10.Bond is a constitutional right of every accused person which may only be limited where there are compelling reasons advance ed by the prosecution top the satisfaction of the court on a balance of probability. 11.What constitute compelling reasons have now been settled in Kenya and this court will not attempt to add thereto save as to point out that Bond Bail Policy Guidelines has captured them and the Court of Appeal has stated them in the Case of Michael Juma Oyamo & Another v Republic [2019] KECA 953 (KLR) thus :.“ 23.We have carefully considered the record of appeal, the submissions by counsel and the various authorities cited. Article 49(1) (h) of the Constitution states that an arrested person has the right “to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons”. It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person. We wish to adopt the definition of what amounts to compelling reasons as defined by the High Court in R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 as follows:“….. 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.” 24.According to the recently launched publication, Crimianl Procedure Bench Book at pages 48 – 51 paragraph 105, compelling reasons may 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. 25.Further, section 123 A(1) of the Criminal Procedure Code which is to be read with section 123 thereof provides as follows:“123A(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 and 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 having committed the offence.”Subsection (2) thereof stipulates that 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.” 26.This Court has had occasion to pronounce itself on all these constitutional and statutory principles regarding bail in Republic v Nuseiba Mohammed Haji Osman [2018] eKLR where the Court stated,inter alia:“Denial of a constitutional right is not a matter to be treated lightly and therefore any claims made against an accused person aimed at curtailing the constitutional right to liberty must not be made on speculation or conjecture.” 27…………………………… 34.We find this explanation insufficient. Paragraph 106 of the Criminal Procedure Bench Book states as follows:“ 106.The fact that the accused has been supplied with witness statements does not warrant the denial of bail, unless there is evidence of a real likelihood of the accused interfering with witnesses (R V Peter Mawia High Court at Machakos Criminal Case No. 48 Of 2015). Bail should not, therefore, be denied on weak grounds but on real and cogent grounds that meet the highest standards set in the Constitution. Allegations of witness interference must be supported by evidence. (R V Anthony Mgendi Mbungu & Another High Court At Embu Criminal Case No. 34 Of 2015).” 12.In this matter the prosecution has raised the issue of witness interference but is silent on the nature of the alleged interreference and or the identity of the witnesses who are likely to be interfered with. The prosecution is also not silent on whether the concerns raised herein cannot be ring fenced by appropriate terms and conditions. 13.I take the view that remand should be the exception rather than the ruling and fir the court to limit the accused enjoyment of rights under the constitution it is for the prosecution and not the accused to satisfy the court of the reasons to warrant the limitation of rights. 14.In this matter the prosecution has failed to discharge this duty and therefore the court cannot create any compelling reason to deny the accused his right to bond noting that to allege that the accused has no fixed a bode merely because the same is paying rent and is not an owner the illusionary affordable housing will be akin to splitting hairs . 15.The accused shall therefore be released on bond/bail pending trial on the following terms and conditions:A.Bond of Kenya shillings three hundred thousand ( kshs 300,000) with one surety of similar amountB.In the alternative cash bail of Kenya shillings 0ne hundred and fifty thousand (kshs 150,000) with one recognized Kenyan citizen .C.The accused shall not interfere with any of the intended prosecution witnesses in any form whatsoever. 16.And it is ordered DATED SIGNED AND DELIVERED THIS 25TH DAY OF JUNE 2025J.WAKIAGAJUDGEIn the presence of