https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10017

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL CASE NUMBER E033 OF 2026** **REPUBLIC …………………. .………………………………...….. ODPP** **VERSUS** **MICHEAL MBITHO …...………...………………...…….. 1ST ACCUSED** **JAMES KARIUKI NYINGI ……………………...……….. 2ND ACCUSED** **RULING** 1. The accused persons have been arraigned in this court on information of **Murder Contrary to Section 203 as read with Section 204 of the Penal Code.** The particulars of the charge allege that on 25/5/2026 at Karuchwa Area, Githioro location, in Nakuru North County , they jointly with others not before the court murdered George Njogu Gitau. They pleaded not guilty. 2. The Prosecution opposed release of the accused on bond/bail relying on an affidavit sworn by the Investigating Officer (PC Moffat Mayaka) on 18th June 2026. He deposes that the accused persons could interfere with arrest of other suspects; the accused risk harm from the public since the incident elicited strong emotions and that given the serious nature of the charge and severity of the prescribed sentence in the event of a “guilty” verdict, the accused persons are a flight risk, adding that they have no fixed place abode. 3. The defence Counsel Ms Daye holding brief for Mr. Matoke H Advocate and Ms Ochieng Advocate for the 1st and 2nd accused persons respectively, insists that the accused persons are entitled to release on reasonable bond/bail terms pursuant to **Article 49 of the Constitution**. It is pointed out that they had in custody for 21 days following their arrest, a period said to be enough for investigations to be concluded. According to Counsel, the contentions in the Prosecution affidavit amount to mere speculation. The defence Counsel therefore submit that there is no sufficient factual and legal basis for denial of bond/bail. 4. Mr. Wakasyaka (Prosecution Counsel) responds that their objection is merited. Counsel fully relies on the Investigating Officer’s affidavit evidence in opposition to the Application. 5. I have considered learned Counsel’s rival arguments on the application. **Article 49(1) (h) of the Constitution** provides; **“An arrested person has the right-** **To be released on bond or bail, on reasonable grounds, pending a charge or trial, unless there are compelling reasons not to be released”** **Concise Oxford Dictionary** defines **“compelling”** as **“forcing or obliging to do something; bring about by force or pressure.”** 1. **Section 123A of the Criminal Procedure Code** further stipulates thus;- **“(i) 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 –** 1. **the nature and seriousness of the charge;** 2. **the character antecedents associations and community ties of the accused person;** 3. **the defendant’s record in respect of the fulfilment of obligations under prevous grants of bail; and;** 4. **the strength of the evidence of his having committed the offence.** 5. **A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person;-** 1. **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;** 2. **Should be kept in custody for his own protection.”** 6. As held in the famous case of **Ng’ang’a vs Republic (1985) KLR 451**, the primary consideration before deciding whether or not to release an accused or arrested person on bond/bail is whether there are sufficient safeguards to guarantee his attendance at trial. 7. If therefore there is convicing evidence that the accused persons herein will not attend trial if released; or that they are interfering or will interfere with witnesses; or they are a flight risk; or that their security is at risk because of hostility in their community as alleged by the prosecution, then these are among grounds for denial of bond/bail [(see case law in **Republic vs Wanjiku & Another (criminal case No. E002 of 2024 [2024] KEHC 4663 (KLR) (2 May 2024) (Ruling)** among many other decided cases]. 8. I have considered the prosecution evidence and Counsel Submissions .The burden is on the prosecution to show on a balance of probability that compelling reasons exist to warrant denial of bond/bail to the accused persons. No *prima facie* evidence is, however, presented in the Prosecution’s brief affidavit proving that the accused persons face danger if released. Evidence of interference with investigations or threats to witnesses is not also tendered. Neither is it shown that the accused persons are a flight risk. There is no evidence for instance from any member of the public hailing from the same place as accused persons, showing that they may not be traced if they abscond. 9. I find in the circumstances that the prosecution failed to discharge the burden of demonstrating compelling reasons for denial of bond/bail. Consequently, the defence Application is granted and each accused person will execute bond of Kshs. 500,000/= plus one surety each of the same amount. The Deputy Registrar shall examine any proposed sureties to determine compliance with the court’s order. 10. Ruling accordingly. **J. M. NANG’EA, JUDGE.** **Ruling delivered virtually this 9th day of July, 2026.** **In the presence of:** **The Prosecution Counsel, Mr Wakasyaka.** **The 1st Accused’s Counsel, Ms Ngugi for Mr Matoke H.** **The 2nd Accused’s Advocate, Ms Mungai for Ms Ochieng.** **Accused persons.** **The Court Assistant (Jeniffer).** **J. M. NANG’EA, JUDGE.**