https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13004

Republic v Ndeti (Criminal Case E009 of 2026) [2026] KEHC 13004 (KLR) (20 August 2026) (Ruling) Neutral citation: [2026] KEHC 13004 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Case E009 of 2026 EM Muriithi, J August 20, 2026 Between Republic Prosecutor and Francis Murimi Ndeti Accused Ruling 1.This is a ruling on bail pending trial for the accused who is charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code, with particulars that he “on the 18th day of April 2026 at Njoka Village, Kangai Location, Mwea West Sub-County within Kirinyaga County, murdered Lydya Wangeci Gikunju” as set out in Information dated 6/5/2026. 2.Upon an order of the Court for a social inquiry for pre-bail information report, the Probation Officer Ms. Pauline Lechipan in a report dated 14/7/2026 recommends that the accused is not suitable for bail given his likelihood to abscond, lack of a fixed abode, drug abuse and the safety concerns for himself and his family members in view of prevailing hostility in the community for the anger at the killing of the old grandmother in the case, as follows:“ConclusionThe accused is a middle-aged man who resided at Marura "A" village prior to his arrest. He was engaged in casual jobs to earn a living. He is a father of three minor children who have been in the custody of his mother and siblings for the past 8 years.The accused is considered mentally fit as per the medical records. It was observed that he completely downplays the gravity of the current murder charge. He prays for bail pending hearing and determination of the matter. His family, the victim's family and the general community is against his release on bail/bond. They believe that releasing him on bail/ bond would not only risk interfering with the administration of justice but also expose both the accused and his family to potential harm arising from the prevailing hostility within the community.The following were observed: That:The accused has a history of disappearing from the locality for prolonged periods without notice. He has no permanent housing, having previously dismantled and sold his own house components. No family member, extended relative, or friend is willing to stand as a surety or secure his bail/bond due to deep-seated mistrust and fear that he will jump bail/bond.To the community, circumstances under which the offence was committed and age of the victim, breaches their societal norms and values, thus they are not comfortable to have him in their midst.The accused survived a lynching attempt during his arrest and local administration warns that his release on bail/bond will trigger public unrest and lawlessness. Releasing the accused exposes him to vigilante justice and puts his immediate family at risk of retaliatory attacks, including threats to burn down family businesses.RecommendationYour Lordship, citing the high chances offlight risk, lack of sureties, intense community hostility following the alleged murder of a 104-year-old woman, the safety concerns from the accused's own family and the wider community, it is recommended that bail/bond for the accused be denied.Pauline LechipanProbation OfficerKirinyaga14th July 2026”. 3.The Prosecution has in addition filed an affidavit sworn by he Investigating Officer on 20/7/2026 opposing bail and reiterating the accused’s past criminal conduct, the circumstances of the offence and disappearances from home and requests for stringent bond terms in the event the court is minded to grant bail, as follows:“ 1.I No.111401 PC Erick Oigara Of P.O Box 165 Sagana in the Republic of Kenya, do make oath and state as follows: 2.That , I am an investigator with the Directorate of Criminal Investigations, Mwea West competent and have been authorized to swear this affidavit. 3.That , I am the Investigating officer in this matter which is before this honorable court (Murder contrary to section 203 as read with section 204 of the Penal Code) 4.That , On 4th day of May, 2026 I registered case of murder at Kerugoya under case file No E-009/2026 where the accused person one Francis Muremi Ndeti was arraigned for information and directions at Court no. 5 and the matter was referred to Nyeri High Court before Hon. Justice Kizito on l2thMay 2026 for plea taking. 5.That , On 12th May 2026 the respondent took plea virtually before Hon. Justice Kizito. 6.That : Family victims harbour bitterness against the accused and there are threats to lynch him if seen since it reminds them of the past as they hail from the same locality/area. 7.That , the respondent is a serial offender and if given bond is likely to repeat offenses at the expense of unsuspecting citizens or abscond from the jurisdiction of this court despite the fact that he has the rights to be deemed innocent until proven guilty.” 4.The Counsel for the accused filed a replying affidavit sworn by the Accused on 24/7/2026 pointing to the accused’s right to bail, challenging the negative Probation Officer’s report and Investigation Officer’s affidavit, and pledging to comply with bail conditions as follows:“Replying Affidavit To The Application For Opposition Of Bail.I, Francis Murimi Ndeti, a resident of Kirinyaga County within the Republic of Kenya, do make oath and state as follows. 1.That I am the accused person in the above cited case. 2.That I was arrested on 18th April, 2026 3.That thereafter, the investigations officer sought 14 days to conduct investigations from Baricho Police Station and I was remanded at Kiamaciri police station for 14 days. 4.That on 12th May, 2026 I took plea before the Hon. Kizito Magare, Judge who was standing in for this Court. 5.That I entered a plea of not guilty. 6.That the prosecutor prayed that I be denied bail. 7.That the Court directed that a pre bail report be prepared by the Probation and After Care Service. 8.That my probono counsel has provided me with a copy of the report, which concludes that I should be denied bail. 9.That the investigation officer has also sworn an affidavit in support of the application that I be denied bail. 10.That I swear this affidavit in response and state as follows 11.That my probono counsel on record has informed me that I have the right to be released on reasonable bailor bond terms unless there are compelling reasons not to be released. 12.That the reasons given by the investigations officer are not compelling to warrant denial of reasonable bond or bail. 13.That the investigations officer states I am a flight risk despite the fact I have a known residence and family. 14.That the investigations officer states I am a repeat offender but mischievously fails to add that I have been acquitted and never been found guilty of any offence. 15.That the investigations officer states that the family members of the victim bear bitterness against me and are likely to lynch me if released on bail. That I am informed this is hearsay and cannot be relied on. 16.That the above fact should not be used against me since I am presumed innocent until proven guilty and if the court relies on the above stated fact, it will be punishing without hearing. 17.That as a citizen I enjoy protection and it is the duty of the investigations officer to inform the family of the victim that I am innocent until proven guilty and that-should they threaten and/or lynch me, they will be charged before a court of law. 18.That as stated by the pre bail report, I have minor children who I visit, they live with their grandmother since the death of their mother. 19.That murder cases, like this one, take very long to conclude and it is not in the best interests of my children that I remain in custody throughout the trial. 20.That the investigations officer and the pre bail report pray for stringent bailor bond terms. 21.That the above terms are foreign, since the constitution only talks of reasonable bail. And that bail should not be used as a tool for punishment. 22.That the pre bail report states that since no family member is willing to be a surety, I should be denied bail. That this is simply not true. 23.That additionally, the above statement is not a compelling reason. 24.That the prosecution having not adduced compelling reasons as per bail and bond guidelines, I pray this Honourable Court to release me on reasonable bailor bond terms. 25.That I am a resident of this court's jurisdiction. 26.That if I am able to meet the terms of the bailor bond, I will religiously attend court. 27.That the evidence against me, from the statements I have been supplied with is circumstantial. 28.That I have minor children that would be affected by my long absence away from them taking into account their mother's death in 2018.” 5.The test for grant of bail in terms of Article 49 (1) (h) the Constitution is the existence of a compelling reason to deny bail against the object of bail, which is to secure the attendance of the accused to his trial before the court. 6.On the evidence before the Court, the Court cannot hold anything against the accused for his previous criminal cases which he states ended with his acquittal. The want of fixed abode is not accurate as the Probation Officer’s report indicates that he was accommodated at a shop facility his family’s home and prior to his arrest “operated a soup business at Kangiciri Centre alongside farming a quarter-acre piece of land entrusted to him by his family.” 7.However, the Court considers that the accused’s antecedents of long absences from home noted in the pre-bail report predisposes him to abscond given the serious nature of the present charges but could properly be addressed by stringent bail terms suggested by the Prosecution’s Investigating Officer. 8.However, in this case, the community hostility over the crime presents a risk of security and safety concerns both for the accused and his family who, according to the Probation Officer’s report, have expressed such fears and threats from the community members. A Probation Officer’s pre-bail report is the standard procedure for ascertaining the circumstances of an accused for purposes of criminal trial processes including bail consideration. If an accused wished to contest the content of such reports an order for cross-examination of the Probation Officer on her report may be made. In the absence of such application for cross-examination, the Court must use the report as the best evidence available from the social inquiry into the accused’s circumstances to be considered along any affidavits filed by the accused on the matter. In relying on such a report it does not, as urged by the Accused, mean that he is punished without a hearing: the accused has opportunity to be heard by replying to the report and any affidavits filed by the Prosecution and even call for cross-examination of the maker of the report and affidavits. 9.The Court accepts that the community hostility on the ground may pose a safety concern on the accused and, as in this case, on his immediate family of the mother and siblings. The Accused’s objection that the Police should warn the victim’s family and presumably the entire community of the accused’s right to presumption of innocence until proven guilty so as to not to seek revenge may not be practical or efficacious. Despite such warnings, the enraged community may still carry out reprisal attacks on the accused and his immediate family who have in the Probation Officer’s report expressed the very fears based on threats. 10.The accused has not been living with his minor children for the past 8 years following the death of his wife. The reason of the minor children and need for his care urged in support of his bail by the Accused is not genuine, their care and support already being given by his mother and sisters. 11.The Court finds that compelling reason exist to warrant the denial of bail at this stage and in giving effect to the accused’s right to expeditious trial, the Court will give directions as to priority hearing for accused who is held in custody without bail. Orders 12.Accordingly, for the reasons set out above, the Court finds that the accused’s bail must be declined for the security of the Accused and his family members under threats of reprisals from their aggrieved community. 13.The Accused’s trial will be processed to hearing on priority basis as the Accused is held in custody without bail. 14.In the event of changed circumstances on the ground, the accused shall be at liberty to renew application for bail at a later stage.Order accordingly. DATED AND DELIVERED THIS 20TH DAY OF AUGUST 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mwangi for the DPP.Ms. Muturi for Mr. Kathigiu for the Accused.