https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7267

Republic v Musyimi (Criminal Case E016 of 2025) [2026] KEHC 7267 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7267 (KLR) Republic of Kenya In the High Court at Kibera Criminal Case E016 of 2025 DR Kavedza, J May 26, 2026 Between Republic Prosecutor and Kithuka Kimunyi Musyimi Accused Ruling 1.The accused was charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars of the offence as per the information are that on 13th October 2025 at 0810 hrs at Statehouse Nairobi within Kilimani Sub County within Nairobi County murdered Ramadhan Khamisi Matanka. The accused took plea and pleaded not guilty to the offence of murder. 2.He has now approached this court seeking to be released on reasonable bail/bond terms pending his trial. 3.In reply, CPL Mwenda swore an affidavit dated 9th March 2026 opposing the application for bond. He deponed that the deceased was a General Service Officer attached to G Company, responsible for providing security to the Head of State, and that he was attacked while on duty. It was further stated that the accused was armed with a bow and arrow and that the prosecution witnesses are fellow officers who survived the attack. Counsel contended that the accused breached security within a highly protected area and, if released, poses a risk of returning to complete the alleged mission and interfering with witnesses. 4.On that basis, the prosecution urged the court to decline bail/bond pending the hearing and determination of the case. 5.In response, Mr Nabenda, learned counsel for the accused, submitted that bail is a constitutional right and that the accused is presumed innocent until proven guilty. It was argued that bail can only be denied upon demonstration of compelling reasons, which the prosecution has failed to establish. Counsel contended that the alleged risk of reoffending or interference was speculative and unsupported by evidence. 6.Reliance was placed on the authorities of Jaktan Mayende v Republic and Danford Kabagi Mwangi (2016)eKLR, where the court held that compelling reasons must be cogent, forceful, and not based on conjecture. Further reliance was placed on Mbithi Munguti and Republic v Peter Muya (2015)eKLR on the burden resting upon the prosecution to demonstrate compelling reasons. It was also submitted that the accused requires continued medical attention, is a family man, and should be released on bail on humanitarian grounds. 7.Article 49(1) (h) of the Constitution guarantees the right of an arrested person to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons for the person not to be released. The onus of proof in bail applications in respect of compelling reasons is borne by the state under section 123A of the Criminal Procedure Code (Cap 75) Laws of Kenya. The right for an accused person to be released on bail is not absolute. 8.In determining whether the interest of justice dictates the exercise of discretion under Article 49 (h) of the Constitution, the courts are to be guided by the provisions of section 123A of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides:“In such a determination the courts are to factor the following exceptions to limit the right to bail;(a)Nature or seriousness of the offence;(b)The character, antecedents, associations, and community of the accused person;(c)The defendants record in respect of the fulfilment of obligations under previous grant of bail;(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 if released on bail, it is likely that he would fail to surrender to custody;(b)Should be kept in custody for his own good. 9.the Constitution specifically requires that under Article 49(h) that terms of bail to be attached to an accused shall be reasonable. Besides the exceptions limiting the right to bail under section 123A of the Criminal Procedure Code, Article 49 (h) of the Constitution places the burden of proof on the state to demonstrate compelling reasons. It is therefore upon the prosecution to prove that there are compelling reasons why the accused should not be released on bail. 10.The Court has considered that public interest and national security constitute compelling reasons in determining bail applications. This is particularly so where the alleged offence implicates the safety of protected installations and high-level State functions. The principle is anchored in the need to balance the constitutional right to bail against the broader interests of society, including public safety, under the limitations contemplated in Article 24 of the Constitution. 11.In the present case, the prosecution has demonstrated that the alleged offence occurred in the vicinity of State House, a highly protected area, and is said to have involved an attempt to breach security directed at the Presidency. The accused is further alleged to have been armed and to have engaged security officers attached to the Presidential detail. The prosecution witnesses are serving officers who were directly involved in repelling the attack and remain within the same operational environment. 12.The Court is mindful of the need to avoid speculative reasoning in bail determinations. However, where credible allegations point to a direct threat to national security infrastructure and the safety of persons assigned to protect the Head of State, the risk assessment assumes a higher threshold. In such circumstances, the likelihood of interference with witnesses and recurrence of similar conduct cannot be lightly dismissed. 13.The authorities cited on behalf of the accused correctly restate the principle that bail is a constitutional right and that compelling reasons must be demonstrated. Nevertheless, each case must be determined on its own facts, and where the safety of the State and its protected institutions is implicated, the Court is entitled to give due weight to public interest considerations. 14.In the circumstances of this case, the Court finds that the prosecution has established compelling reasons grounded in public safety and national security. Accordingly, the application for bail is dismissed. RULING DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MAY 2026D. KAVEDZAJUDGEIn the presence of:Mr. Nabende for the AccusedMs. Timoi for the ProsecutionKarimi Court Assistant