https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7389

Republic v Muiruri (Criminal Case E007 of 2026) [2026] KEHC 7389 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7389 (KLR) Republic of Kenya In the High Court at Thika Criminal Case E007 of 2026 FN Muchemi, J May 21, 2026 Between Republic Prosecution and Eliud Mathu Muiruri Accused Ruling Brief Facts 1.The accused person faces a charge of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the night of 12th day of March 2026 at Wataalam Area in Ruiru sub county within Kiambu County murdered Betty Makandi Mwiti. 2.The prosecution filed an Affidavit of Compelling Reasons labelled as an Affidavit in Opposition to Bond dated 22nd April 2026 sworn by CPL Dain Kinoti, the investigating officer in the instant matter. He deposes that the accused person was known to the deceased and that the two used to stay together as husband and wife. On the material day, the accused person went to the deceased’s work place and stabbed her severally using a knife. Her colleagues and members of the public rushed her to Kenyatta Teaching and Referral Hospital where she was pronounced dead on arrival. The accused person was subjected to mob injustice and was rescued by police officers who rushed him to Ruiru Level Four Hospital for treatment of injuries sustained. 3.The deponent further states that the community where the accused stays is agitated by the incident of killing the deceased and as such, the safety and security of the accused would be at risk in the event that he is released to go back to the community. The accused has no fixed abode as he used to reside in a rental house together with the deceased where the deceased was the tenant. Additionally, upon inquiry, the investigating officer states that he could not trace any identification document of the accused and thus his identity remains a mystery. 4.In opposition to the application, the accused person filed a Replying Affidavit dated 24th April 2026 and states that he has a home in Mithanduku-ini Village in Gatanga in Muranga County where he is well known and he works as a bodaboda rider, thus not a flight risk. He further states that his security and safety is not at risk as he resides in Mithanduku-ini village and not Wataalam area where the community is alleged to be agitated. 5.The accused person avers that his family depends on him and that he has no known history of absconding bail. He further states that he shall abide by any other terms that the Honourable court may deem fit in the circumstances. The Law Whether the reasons for opposing bail are merited in terms of Article 49(1)(h) of the Constitution 6.Article 49(1)(h) of the Constitution provides that:-An accused 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. 7.It follows that the right to bail is not absolute and where there are compelling reasons, that right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. 8.It is trite that the considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on 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, 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.” 9.In Republic vs Fredrick Ole Leliman & 4 Others [2016]eKLR the court held that:-“The principles set out under the Bail and Bond Policy Guidelines I have been referred to are the same ones that were set out in the celebrated case of Ng’ang’a vs Republic 1985 KLR 451 where Chesoni J, as he then was thus:-“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 grant bail to an accused person unless it is shown by the prosecution that there are substantial grounds for believing that:-a.The accused will fail to turn up at his trial or to surrender to custody;b.The accused may commit further offences; orc.He or she will obstruct the course of justiceThe primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider;a.The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;b.The strength of the prosecution case;c.The character and antecedents of the accused;d.The likelihood of the accused interfering with prosecution witnesses.” 10.The main issue herein is whether the reasons adduced by the prosecution amount to compelling reasons such that the court should not grant bail pending trial. 11.The prosecution has argued that the accused person is a flight risk and his safety is at stake. 12.In regard to the allegations that the accused person is a flight risk and his safety is at stake, the prosecution did not demonstrate by way of evidence that the said allegations are true. As such those are matters of speculation. In the case of R vs Joktan Mayende & 3 Others (2012) eKLR, the court in considering the scope of Article 49(1)(h) stated as follows:-The phrase “compelling reasons” denote that the reasons are forceful and convincing as to make the court feel strongly that the accused should not be released on bond. Bail should therefore not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution. 13.It is noted that the accused does not deny having lived with the deceased in a rented house before her demise. But he has averred that he has a home in Mithanduku-ini village Gatanga Sub-County where he works as a bodaboda rider and that he does not live in Wataalam area where the community is said to be agitated about his alleged killing of the deceased. The prosecution did not rebut the evidence on oath in the replying affidavit on the residence of the accused. In absence of a rebuttal, this court believes the averment of the accused as the final word. Further, the deceased was a tenant in the house he occupied with the deceased and there is no indication that he is going back to live at Watalaam. It is also important to note that the security of every citizen is the responsibility of the state. 14.The prosecution in my view, has failed to present any cogent evidence to support the allegations in the affidavit of compelling reasons. Having carefully considered the grounds relied on, it is my view that the reasons given do not pass the test set out under Article 49(1)(h) of the Constitution. 15.I therefore find that the accused person should be granted bail on the following terms: -a.The accused shall be released on bond of Ksh.2,000,000/= with one suitable surety.b.That the accused shall not leave the jurisdiction of this court without its permission.c.That upon release the accused shall go to his home at Mithanduku-ini in Gatanga Sub-County and not return to Watalaam Village in Ruiru, Kiambu Sub-County until this case is disposed of. 16.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 21ST DAY OF MAY 2026.F. MUCHEMIJUDGE