https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11263

Republic v Mwangi & another (Criminal Case E010 of 2026) [2026] KEHC 11263 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 11263 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Case E010 of 2026 B Mwamuye, J June 22, 2026 Between Republic Prosecutor and Amittai Nduati Mwangi 1st Accused Tim Ndubi 2nd Accused Ruling (on the 1st and 2nd Accused Persons’ Oral Applications For Bail/bond Made On 16th April 2026 and 11th June 2026) Introduction 1.This Ruling relates to the oral applications for bail/bond for the remainder of the trial. The application was made orally in court on two dates, 16th April 2026 and reiterated on 11th June 2026. The reason for the Application being made twice was that after the first oral application on 16th April 2026 the Court called for a Pre-Bail Report with respect to each Accused Person, and thus the second oral application was argued on 11th June 2026 in light of the Pre-Bail Reports both dated 27th April 2026, filed on 29th April 2026. 2.The Prosecution did not file any affidavit in opposition and this non-opposition was noted in both Pre-Bail Reports. However, at the hearing of 11th June 2026 Ms. Carolini Muriu, Prosecutor, expressed the State’s concern as to the safety of the Accused Persons if they were to be released on bail/bond to the local area where they allegedly committed the homicide in question. The Prosecution noted that the Accused Persons are both students at a University located in the local area where the homicide is said to have taken place, and that the Pre-Bail Reports indicated significant resistance to bail/bond by the Family of the Deceased as well as significant hostility from the local community, 3.Mr. Kinuthia, Counsel for the 1st Accused, sought to assuage those concerns by raising two points. Firstly, Counsel for the 1st Accused confirmed that his Client had no intention of returning to the instant campus or the local area; and would instead either continue his studies online or physically at a satellite campus. 4.Secondly, Mr. Kinuthia reiterated the constitutional foundations of the right to reasonable bail/bond unless exceptional circumstances existed to justify the denial of the same. Counsel for the 1st Accused Person noted that a denial of bail/bond would in effect halt the educational progression of both Accused Persons, who are constitutionally deemed as innocent until proven guilty. After confirming his Client’s willingness to attend court as and when required and to adhere to any and all conditions set by this Court, Mr. Kinuthia rested by urging this Court to grant his Client reasonable bail/bond terms. 5.At that juncture, the parents of the 1st Accused Person sought and received permission to address the Court. They confirmed that they were willing to offer security, act as sureties, and to ensure compliance by their son. 6.Mr. Ndubi, Counsel for the 2nd Accused Person, associated himself fully with the submissions and positions articulated by his colleague, Counsel for the 1st Accused. Counsel for the 2nd Accused added that it is noteworthy that the Prosecution was not opposed and that the Pre-Bail Reports were ‘positive.’ Counsel Ndubi underscored that the 2nd Accused Person is a 2nd Year Student who was at the cusp of completing his tertiary studies. 7.Counsel Ndubi this asked that his Client be released on reasonable bail/bond terms, so that the 2nd Accused could finish his degree course. Counsel concluded by affirming his Client’s commitment to making alternative arrangements that would mean that he would not attend the instant campus or come into contact with the staff and local community of the area. 8.After her son’s Counsel had taken his seat, the 2nd Accused Person’s mother requested and received permission to address the Court. As was the case with the 1st Accused Person, the Mother of the 2nd Accused Person confirmed that she was willing to offer security, act as surety, and to ensure compliance by her son. 9.The Court also considered a ‘ Replying Affidavit’ dated 15th June 2026 drawn and filed by one Pamela Alekana, the Mother of the Deceased. While confirming that the Probation Officer had accurately captured the Victim’s Family’s sentiments on the issue of bail/bond, the Mother of the Deceased stated that she wished to bring to the attention a number of facts and circumstances that the Family felt are important to a proper and just determination of the bail/bond question. 10.Firstly, it was pointed out to the Court that the Family and the Local Community are fearful of a possibility of retaliation by the Accused Persons, whom are of course innocent until proven guilty. She also contended that the Accused Persons are said by elements of the Local Community to have committed the homicide in concert with other persons not before the court; a factor that makes her Family and the Local Community apprehensive over the release of the Accused Persons on Bail/Bond. 11.Secondly, she pointed out to the possibility of interference with witnesses since she is a staff member of the university attended by the Accused Persons, as are a large number of the potential prosecution witnesses. Lastly, she observed that seeing the Accused Persons would reawaken the raw emotions and re-ignite the trauma that the Family has been living with since the homicide. 12.The right to bail or bond is a fundamental constitutional guarantee aimed at balancing an accused person's right to liberty with the interests of justice. Under Article 49(1)(h), every arrested person the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons to justify continued detention. 13.Section 123A of the Criminal Procedure Code further guides the Court to consider, inter alia, the nature and seriousness of the offence, the character of the accused, the likelihood of absconding, and the potential interference with witnesses when considering the question of bail/bond with respect to an accused person. 14.The sole issue for determination is whether in the circumstances of the matter it is fit, just, and proper for the 1st and/or 2nd Accused Persons to be granted bail/bond. 15.In my consideration, both the 1st Accused Person and the 2nd Accused Person are fit for the grant of bail/bond. Their respective pre-bail reports are largely positive and their respective parent(s) are each willing to provide security in accordance with Section 126 of Criminal Procedure Code and to serve as contact persons for their sons. 16.With regard to flight risk, to my mind the fact that both intend to reside with their respective parents and both accused persons are willing to comply with any conditions on movement and residence mitigates the risk significantly. They are also willing to stay-away from the instant campus and the local area, and to refrain from any contact with Prosecution witnesses, the Victim’s Family, or other relevant persons. 17.The negative views of the victim’s family, while legitimate and deserving of respect, must be weighed against the constitutional presumption of innocence and the right to liberty. No material has been placed before this Court to demonstrate that the accused persons are likely to interfere with witnesses or otherwise obstruct the course of justice. The concerns of the victim’s family must rise above speculation, which they did not. 18.The Prosecution are not opposed and did not file any affidavit to counter the application for bail bond. 19.A key consideration was that the Accused Persons, whom are innocent until proven guilty, are in university education. The Court is mindful that a denial of bail/bond would in effect result in either a halting of that education or perhaps even bring the same to an end. It is just that the Accused Persons be permitted to continue their studies, albeit with stringent conditions; as shall be seen below. 20.In the circumstances, the Court finds that no compelling reasons have been established to justify denial of bail/bond, and that both the 1st and 2nd Accused Persons should be granted bond on reasonable terms. 21.The apprehensions expressed by the Local Community and the concerns over possible witness interference are weighty, as was the Affidavit filed by a member of the Deceased’s Family. Having considered all factors, it is prudent to balance the competing interests and concerns at play in this matter by granting the Accused Persons Bail/Bond but also setting Bail/Bond conditions that secure the Family of the Deceased and the Prosecution witnesses. 22.For the avoidance of doubt, the grant of bail/bond is not an acquittal nor is it a statement that an acquittal is likely. It is merely a temporary release of an accused person pending full trial in line with the constitutional guarantee of the grant of the same in appropriate circumstances. Disposition 23.Consequently, the application for bail/bond made orally in this matter be and are hereby allowed on the following terms:-a.The 1st Accused, AMittai Nduati Mwangi, is granted bond 2of KShs.1.5 million with one surety of a similar amount;b.The 2nd Accused, Tim Ndubi, is granted bond of KShs.2.5 million with one surety of a similar amount;c.The 1st and 2nd Accused Persons are each prohibited, as part of their individual Bail/Bond conditions, from residing in, visiting, or accessing the instant campus area, the wider Thogoto Area, or the homes or workplaces of any prosecution witnesses or any member of the Family of the Deceased Person; or areas adjacent to the same;d.The 1st and 2nd Accused Persons shall each provide two adult contact persons, one of whom in each case must be a blood relative;e.The 1st and 2nd Accused Persons shall attend Court whenever they are each required to until the case is fully determined;f.The 1st and 2nd Accused Persons shall each inform the Investigating Officer of where they shall be residing and shall each update the Investigating Officer if they change residence;g.The 1st and 2nd Accused Persons are ordered not to communicate with any family member of the Deceased Person or any prosecution witnesses or to in any way interfere with the witnesses or evidence herein;h.Neither Accused Person shall leave the territory of Kenya without the express order of this Court;i.The Accused Persons shall each not apply for any passport or international travel document without the leave of this Court, and if either of them have a passport the same shall be deposited in Court for the duration of the trial within seven (7) days of this Ruling; and shall only be released upon successful application to Court;j.The 1st and 2nd Accused Persons shall each continue with their current studies to their conclusion and without any suspension or expulsion; and,k.Failure to abide with the conditions above will render the bond terms cancelled, and the non-compliant accused person(s) shall be remanded in custody for the remainder of the trial.It is so ordered. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS TWENTY-SECOND DAY OF JUNE 2026……………………………………………………………BAHATI MWAMUYE MBSJUDGEIn the presence of:Prosecution – Ms. Caroline MuriuCounsel for the 1st Accused – Mr. WanyamburaCounsel for the 2nd Accused – Ms. Bosibori h/b Mr. Ndubi1st Accused - Present2nd Accused - PresentCourt Assistant – Mr. Martin and Mr. Austin