https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12419

Republic v Muthoka (Criminal Case E059 of 2026) [2026] KEHC 12419 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 12419 (KLR) Republic of Kenya In the High Court at Makadara Criminal Case E059 of 2026 AK Ithuku, J July 28, 2026 Between Republic Prosecution and Kennedy Muthoka Accused Ruling 1.The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars of which were that on the 1st day of May 2025 at Pipeline Area, in Embakasi Sub-County, within Nairobi County with others not before the court, jointly murdered Cosmas Muinde Kioko. 2.He pleaded not guilty and in compliance with the provisions of Article 49(1) (h) of the constitution, the prosecution filed and served an affidavit opposing bond, sworn by CPL Mercy Mwende, in which it was deposed that a key witness in the case, one Michael Mutuku is well known to the deceased. 3.That the deceased was returning home from watching a football match at Pebbles Green Club together with his colleagues when he was accosted by five men who assaulted him by stabbing him with a piece of a broken bottle causing him to sustain injuries on his head, neck and face. 4.That Micheal Mutuku was leaving the same club when he found the deceased being assaulted prompting him to shout for help. That the assailants fled upon seeing Michael, leaving the deceased lying on his stomach and bleeding from his neck and face. That the said witness was able to identify one of the assailants as the accused person herein as he a person well known to him physically. 5.It is further deposed that during investigations, it was established that Micheal, the eye witness and a key witness in this case is a person well known to the accused person as the latter is a member of a known gang in Kware where the witness resides. 6.That based on the accused person’s proximity to the key witness, there is apprehension that if the accused person is released on bond, there is a high likelihood of interference with the witness. 7.CPL Mercy Mwende further deposes that she has established that the accused person herein has no known fixed abode within the jurisdiction of this court. That the lack of known contacts or fixed aboard is compelling reason, enough to suggest that if released on bond, the accused person will not submit himself to the jurisdiction of this court, effectively leaving the case in jeopardy. 8.In response, the accused person filed a replying affidavit in which it was contended that he did not know the witness referred to as Micheal Mutuku, have never met him before, does not have his contacts details and does not know where he resides. He further deposed that he does not reside in Kware and therefore there is no factual basis upon which it can be alleged that he is capable of interfering with the said witness. Further, the allegation that he is a member of a gang operating in Kware is false, unsubstantiated and unsupported by any evidence whatsoever. 9.He further contended that he has a fixed place of abode with strong family ties and the prosecution’s averments to the contrary are speculative and unsupported by credible evidence. He averred that his permanent residence is at Kyang’a Sub-location, Kathangathini Location, Makueni County where his family resides. He annexed a letter from the Assistant Chief, Kyang’a Sub-location confirming that he is a resident of the said area and well known to the local administration. 10.He further averred that the said letter confirms that in 2025, his parents reported to the Assistant Chief’s office that he had gone missing from home due to a mental health condition, whereupon they were advised to report the matter at the nearest police station. The Assistant Chief subsequently learnt from his parents that he had been traced and was in police custody within Nairobi. The circumstances surrounding his disappearance therefore cannot be construed as evidence of an intention to abscond or evade the due process of the law. 11.That prior to his arrest he had only been Nairobi for only two days and his permanent home remains in Makueni County where he has strong family and social ties. That both his parents are alive and willing to stand surety for him and ensure his attendance before court whenever required. He annexed copies of his parents’ National Identity Cards. He further listed his siblings, all of whom he contended that they constitute his family support system within the jurisdiction of this Honourable Court. 12.He further contended that he is fully aware of these proceedings and undertakes to attend court whenever required, abide by all the bond terms that may be imposed by the Court and refrain from contacting, interfering with or intimidating any prosecution witness. Pre-bail Report 13.In compliance with the Bail /bond policy guidelines, the court called for pre-bail report, which is yet to be availed. Submissions 14.At the hearing Ms. Ochieng for the State, submitted that the accused person’s Replying Affidavit does not respond to the prosecution’s fear on the safety of their key witness. She asked the court to consider the prosecution’s averments and prayed for reasonable bond terms. 15.Mr. Mwangi for the accused person submitted that the accused had a fixed aboard. He further contended that they had attached National Identity Cards of the accused person’s parents. He submitted that it had not been said that the deceased will interfere with any witness. Determination 16.Bond/bail is a constitutional right of every accused person under Article 49(1)(h) of the Constitution which can only be limited where there is compelling reasons advanced by the prosecution to the satisfaction of the court on a balance of probability. 17.What constitute compelling reasons has now been settled in Kenya, through the Bail/Bond Policy Guidelines and as captured by the Court of Appeal in the Oyamo case that bond is a constitutional right of every accused person under Article 49 and may only be limited if the prosecutions provide to court compelling reasons which the Court of Appeal in Michael Juma Oyamo & Another versus Republic [2019] eKLR stated to be forceful and convincing as to make the court feel strongly that the accused should not be released on bond, thus the accused should not be denied bond on flimsy ground but on real and cogent grounds that meet the constitutional standards. 18.These reasons are captured in Section 4.9 of the Bail and Bond Policy Guidelines which were further captured in Section 123A (1) of the Criminal Procedure Code. 19.The court however should not lose sight of the fact that the purpose of bond is and remains to secure the attendance of the accused to court during the period of his trial and that the right to liberty should never be curtailed as was stated in Republic versus Nuseiba Mohamed Haji Osman [2018] eKLR, denial of a constitutional right is not to be treated lightly and any claim made against an accused person towards curtailing his liberty must not be made on speculation and conjectures. 20.In this cause the only reasons advanced by the prosecution is that the accused has no fixed place of abode within the jurisdiction of the court and the prosecution’s key witness is well known to the accused person hence there is a high likelihood of interference with the witness. 21.The accused person has responded to these issues by the prosecution through an affidavit and stated that he has a permanent residence and adequate social ties. On the allegation of witness interference, the prosecution failed to give the nature of the apprehended interference, with the only allegation being that one of the key witnesses is known to the accused person as the accused is a member of a known gang in Kware where the witness resides, which on its own cannot be a ground for denying an accused person bond. 22.I am therefore satisfied that the prosecution has not provided adequate compelling reasons and that those advanced can appropriately be ring fenced by bond terms and conditions. 23.I have also taken into account the rights and interest of the accused person and take the view that the accused having been charged with a capital offence, where one of the possible sentences is death, needs to spend some time with the family during the trial as the outcome thereof is not known at this time of the proceedings. 24.The accused shall therefore be released on the following terms and condition:a.Bond of Kenya Shillings Five Hundred Thousand (Kshs 500,000/=) with two sureties of like amount;b.In the alternative cash bail of Kshs. 250,000/= (Kenya shillings Two Hundred and Fifty Thousand) with two sureties of like amount.c.The accused shall make no contact with any of the intended prosecution witnesses in whatever nature and form, unless the same is done in the presence of the Investigating Officer. 25.And it is ordered. HON. ALEX K. ITHUKUJUDGEDELIVERED, DATED AND SIGNED THIS 28TH DAY OF JULY 2026HON. ALEX K. ITHUKUJUDGE