https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9761

Republic v Namiba (Criminal Case E010 of 2026) [2026] KEHC 9761 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 9761 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case E010 of 2026 WM Kagendo., J June 17, 2026 Between Republic Prosecutor and Ainea Namiba Accused Ruling Preliminaries 1.This Honourable Court is called upon to determine the whether the Applicant should be released on bail/bond pending the hearing and determination of this trial. The Applicant pleaded not guilty resulting to Pre-bail order. The Applicant was charged with Murder contrary to section 203 as read with section 204 of the penal code Cap 63 Laws of Kenya. 2.The particulars of the offence being that on 4th day of April 2026 in Magongo area within Changamwe Sub-County in Mombasa County murdered Susan Achieng Mitoh. 3.On 30th April, 2026 the Applicant pleaded not guilty to the charge. The applicant is currently remanded at Shimo La Tewa Maximum Prison. 4.One No. 85xx9 CPL George Kaparo swore an affidavit opposing bond/bail. He has stated that the Applicant was arrested on 10th April 2026 after he had gone into hiding because members of the public were baying for his blood. 5.He lists 4 reasons which he urged the court to find to be so compelling as to deny bond.i.After committing the offence he has been charged with, the accused person took off to an unknown place in order to evade arrest and justice, knowing very well he was a person of interest in the murder of the deceased;ii.The murder of the deceased led to a lot of angst and hatred amongst the members of the public towards the accused person, as the deceased was a volunteer at Mombasa Young Mothers CBO and well known in the community. Therefore, there is a likelihood of reprisal attacks on the accused person.iii.Most of the prosecution witnesses are close family members, neighbours and well known by the accused person, considering that the deceased was the accused person's wife. The said witnesses are apprehensive that if the accused person is released on bond, he might threaten or harm them to prevent their participation in the trial.iv.There are high chances that if the accused person is released on bond, he will interfere with the witnesses or lead to retaliatory attacks, which will prejudice the prosecution's case. 6.That the applicant might threaten or harm the witnesses so as to prevent their participation in the trial. Bail Information Report 7.In the report dated 22nd May, 2026 by Stephen Muthoka, it was contended that on the victim(s)/ complainant concern; the primary victim in this matter was deceased. The family opposed bail on the grounds that the accused may interfere with the witnesses. 8.The Applicant is described as a family man with parental responsibilities . His place of abode and his known source of livelihood in Jua Kali, Magongo location in Mombasa and also his ancestral home in Mundoli Village, within Khwisero Sub-County were well confirmed. The report shows that In the event he is admitted on bond awaiting full trial, the applicant undertook to continue residing in Mombasa where his family and other relatives live. 9.The accused person had no previous positive bail history and had no any previous criminal record therefore had no history of jumping bail. The local administration was interviewed and various others independent sources gave their opinion on his release on bond terms and from this it was deduced that the safety of the applicant and that of the witnesses were an issue to be considered during the trial period. 10.He was married to the deceased for approximately 15 years and were blessed with 2 children. 11.The officer recommended that on account of interviewees’ information and the findings herein, this Honourable Court could consider denying the accused bond and bail terms. Analysis and Determination 12.The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter referred to as‘the CPC’). Article 49(1)(h) of the Constitution states as follows: -“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released.” 13.Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align the CPC with the Constitution. It provides that: -1.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 relevant circumstances and in particular -a.the nature of seriousness of the offence;b.the character, antecedents, associations and community ties of the accused person;c.the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; andd.the strength of the evidence of his having committed the office.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 as 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;b.Should be kept in custody for his own protection. 14.The rationale behind bail or bond in Kenya is premised on the constitutional imperative under Article 50(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved. 15.In bail or bond applications, therefore, the primary consideration must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. Ibrahim, J (as he then was) in Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that;“The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.” 20.The Constitution does not define the term “Compelling reasons”. But, generally a compelling argument would be something that is in accordance with the fact or some reality. In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term “compelling reasons” as follows: -“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.” 21.In the case of Republic v Francis Kimathi [2017] eKLR, the court held that:“… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution. 22.The Bail and Bond Policy Guidelines provides thus, in regard to compelling reasons:“(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:a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit, or abet the commission of, a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody.” Conclusion and Disposition. 23.In this case I find that the accused person was arrested after going in hiding after the incidence. That is a red flag we cannot ignore. Further, some witnesses can possibly be intimidated or be interfered with 24.From the foregoing, I find this is a case where I should deny the applicant bail as the state has demonstrated compelling reasons. Further ,the community was vexed as one of the champions of gender violence sucummbed to the same and even if he is presumed innocent, the community may not treat him as such. 25.Therefore, I deny the applicant/ accused bond for the time being though this may be revisited at a future date.It is so ordered acordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 17TH DAY OF JUNE, 2026.……………………………………………………HON. LADY JUSTICE W. M. KAGENDO (JUDGE)HIGH COURT OF KENYA AT MOMBASA (CRIMINAL DIVISION)In the presence of:The applicantM/s. Bebora, Court Assistant;Mr. Sirima… State Counsel;Ms Mwogeni and Mr. Adika for VictimSigned by/for:HON. LADY JUSTICE WENDY MICHENIMOMBASA HIGH COURT