[2025] KEHC 4124 (KLR)

Republic v Ngaira (Criminal Case E005 of 2025) [2025] KEHC 4124 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4124 (KLR)

Republic of Kenya

In the High Court at Thika

Criminal Case E005 of 2025

FN Muchemi, J

March 27, 2025

Between

Republic

Prosecution

and

Cedric Ngaira

Accused

Ruling

Brief Facts 1. The accused person faces the charge of the offence of murder contrary to section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the 29th day of September 2024 at Goteana Club area within Githurai Sub County in Kiambu County murdered John Mutembei. On 17th February 2025, the accused person initially pleaded not guilty to the offence.

2. The prosecution then filed an Affidavit of Compelling Reasons labelled as Affidavit in Opposition to Bond dated 18th February 2025. The deponent, one CPL Cyrus Lekisima is the investigating officer in this case. He deposes that the accused is charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The incident was reported at Githurai Kimbo Police Station vide OB No. 21/29/09/2024 where he is stationed. He was arraigned in Ruiru Law courts on 1st October 2024 vide Miscellaneous Application No. E610/2014.

3. The deponent avers that the accused person is a police officer attached at Githurai Kimbo Police Station and chances are high that he may compromise the case if he is released on bond. The deponent further avers that there is a strong likelihood that the accused person will interfere with the witnesses as some of the key witnesses reside within Githurai Kimbo area. The prosecution is apprehensive that if the accused person is released on bail he is likely to abscond. Arresting the accused may be an uphill task for the police in the event that he absconds.

4. The investigating officer states that the court is obligated to balance the rights of all persons including the victims and thus the court should provide a conducive environment for the prosecution of the complaints and witnesses to testify without any interferences by declining to allow the accused person bail or bond.

5. In opposition to the Affidavit in opposition of Bond, the accused person filed a Replying Affidavit dated 20th February 2025. He deposes that he is a police officer Force number 113300 formerly attached at Githurai Kimbo Police Station and that he was arrested on 29th September 2024 and held in custody on allegations that were later explained to him while in custody. The accused person states that on 30/09/2024 he was arraigned in court in Ruiru MCCCRMISC/E610/2024 while investigators sought more time to conclude investigations. As he remained in police custody. He states that he was a suspect in an alleged investigation of an incident where a reveller who had sustained gunshot wounds within Githurai area died while receiving treatment in Kenyatta University Teaching and Referral Hospital. The court rendered its ruling that he should be detained for 14 days pending the conclusion of investigations and the matter be mentioned on 14th October 2024.

6. The accused person avers that on 14/10/2024 and 16/10/2024, the investigators were not yet ready and the court ordered that the matter be mentioned on 22/10/2024 for closing of the miscellaneous file. The accused person further avers that on 22/10/2024, the prosecution and investigators were not ready to proceed with the matter and argued that he should be admitted to reasonable bond pending investigations. The court admitted him to reasonable bond of Kshs. 300,000/- plus two sureties of the same amount. The accused person avers that on the same day, the court reviewed the bond terms and admitted him to a cash bail of Kshs. 200,000/- and two sureties were required to deposit their national IDS to secure his attendance.

7. The accused person avers that since his release, he has attended court on 12/11/2024, 13/11/2024, 25/11/2024 and 27/01/2025 without fail. The accused person further avers that on 10/12/2024, he was interdicted from service, his powers and privileges held in abeyance, commanded to vacate government premises, return all government items and be reporting to the OCS Malaika Police Station in Kakamega South sub county. He further states that he has dutifully attended to the OCS Malaika Police Station whenever required on various dates vide OB No. 09/27/12/2024, 07/06/01/2025 and 05/22/01/2025.

8. The accused person avers that on 27/01/2025 and 18/02/2025, the prosecution informed the court that investigations were complete and that he be charged in the instant court. The accused person further avers that since his release from custody on 22/10/2024 the prosecution and the investigators have not summoned him over any incident related to interference with witnesses or any danger upon him as he has attended court and the police station in Kakamega.

9. The accused person states that since his interdiction he has moved to his home in Kakamega from where he commutes to come and attend court. He urges the court to release him on similar cash bail as he was released in Ruiru over the same matter. the accused person avers that he shall attend court without fail as his character and antecedents from the record in Ruiru affirm that position.

10. The accused person states that he is the bread winner of his wife and children who need him at home. The accused person further states that he started engaging himself in various jua kali activities in order to cater for his family and thus incarceration without bail will negatively impact his family.

The Prosecution’s Submissions 11. The prosecution relies on Article 49(1)(h) of the Constitution, Section 123A of the Criminal Procedure Code, para 4. 9 of the Bail and Bond Policy Guidelines and the case of Michael Juma Oyamo & Another vs Republic [2019] eKLR and submits that the accused should not be released on bail as there exists compelling reasons for the denial of bail. The prosecution contends that the accused person is a police officer and he may intimidate and interfere with witnesses who may not be able to give evidence freely if he is released on bond. The prosecution further submits that the accused person resides within Kimbo area where the witnesses also live and hence there is a high likelihood of interference.

12. The prosecution submits that the accused person ought to be denied bail or bond as he is a flight risk. The prosecution are apprehensive that if the accused person is released on bond he may abscond and may not be traced hence denying justice to the victims.

The Accused’s Submissions 13. The accused reiterates the contents of his affidavit and submits that it is the duty of the state to demonstrate compelling reasons which they have outlined as the accused person is a police officer and that due to his position he may interfere with witnesses who may not give their evidence freely. The accused submits that he is a police officer which is a good indicator that due to his employment in the disciplined forces he will dutifully attend court without fail as he has before. Furthermore, the accused submits that he was interdicted on 10th December 2024 whereupon all his powers as a police officer were held in abeyance pending proceedings in Ruiru MCCRMISC/E610/2024. Pursuant to the interdiction, the accused person submits that he no longer has any powers, privileges and benefits of a police officer but is still subject to the discipline processes which eh adheres to date.

14. The accused person submits that he currently resides in Kakamega South sub county in Muyere village which was a direct result of the interdiction, a fact confirmed by the probation officer Ruiru in the Bail Information Report dated 12th March 2025.

15. The accused person submits that he is not a flight risk and the allegation has not been substantiated by the prosecution. The accused person further submits that since he was released on cash bail of Kshs. 200,000/- in Ruiru MCCRMISC/E610/2024, he has attended court faithfully without fail. Furthermore, since his release there is no record that he interfered with witnesses or the evidence in the matter. He further states that the OCS Malaika Police Station communicated that he was dutifully reporting to his office without fail whenever required to as per the terms and conditions of the interdiction. Thus the accused person pleads with the court to release him on reasonable and consistent cash bail terms as he had been admitted to in Ruiru.

16. The accused person refers to the bail information report dated 12th March 2025 which indicates that he comes from a humble background where he is a breadwinner and provider for his family. The cash bail of Kshs. 200,000/- was as high a ceiling as it could go for his family to raise in order to secure the attendance of their kin to court. To support his contentions, the accused person relies on the cases of Republic vs Irene Mbithe Kimunyu & Another [2016] eKLR; Edwin Mwiti Gacunku vs Republic [2019] eKLR; Republic vs Wycliffe Nyakwana Nyamweya [2016] eKLR and Republic vs Mutungi (Criminal case E009 of 2022) [2023] KEHC 20933 (KLR) (25 July 2023) (Ruling) and urges the court to admit him to reasonable bond and bail terms.

The Law Whether the reasons for opposing bail are merited in terms of Article 49(1)(h) of the Constitution. 17. Article 49(1)(h) of the Constitution provides that:-An accused person has the right….(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

18. It follows that the right to bail is not absolute and where there are compelling reasons, that right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.

19. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail thus:-“the following procedures should apply to the bail hearing: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:-b.That the accused person is likely to fail to attend court proceedings; orc.That the accused person is likely to commit, or abet the commission of, serious offence; ord.That the exception to the right to bail stipulated under Section 123A of the criminal Procedure Code is applicable in the circumstances; ore.That the accused person is likely to endanger the safety of victims, individuals or the public; orf.That the accused person is likely to interfere with witnesses or evidence; org.That the accused person is likely to endanger national security; orh.That it is in the public interest to detain the accused person in custody.”

20. In Republic vs Fredrick Ole Leliman & 4 Others [2016]eKLR the court held that:-“The principles set out under the Bail and Bond Policy Guidelines I have been referred to are the same ones that were set out in the celebrated case of Ng’ang’a vs Republic 1985 KLR 451 where Chesoni J, as he then was thus:-“The court in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (Cap 75), should grant bail to an accused person unless it is shown by the prosecution that there are substantial grounds for believing that:-a.The accused will fail to turn up at his trial or to surrender to custody;b.The accused may commit further offences; orc.He or she will obstruct the course of justiceThe primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider;a.The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;b.The strength of the prosecution case;c.The character and antecedents of the accused;d.The likelihood of the accused interfering with prosecution witnesses.”

21. The issue that arises is whether the reasons adduced by the prosecution are compelling enough such that the court should not grant bail pending trial.

22. The prosecution has argued that the accused is likely to interfere with the prosecution witnesses as he resides in the same area as the witnesses and that being a police officer, he shall use his position to intimidate the witnesses. Further, the prosecution has stated that the accused person is a flight risk and if released on bail or bond he will abscond court.

23. In regard to interference with the key witness, the prosecution did not demonstrate through evidence that such a thing was likely to happen. Further, the allegation that the accused is a flight risk is not supported by any evidence, which is yet another matter of speculation. In the case of R vs Joktan Mayende & 3 Others (2012) eKLR, the court in considering the scope of Article 49(1)(h) stated as follows:-The phrase “compelling reasons” denote that the reasons are forceful and convincing as to make the court feel strongly that the accused should not be released on bond. Bail should therefore not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.

24. The accused person averred that he currently lives at home in Kakamega County following his interdiction. The bail information report dated 12th March 2025 indicates that the accused person no longer resides in Githurai following his interdiction but currently resides in Kakamega county which is his home town and he has a fixed abode there. The report further indicated that the accused person had no history of jumping bail as he was released on cash bail whilst in custody during the proceedings in Ruiru MCCRMISC/E610/2024. Furthermore, the report indicated that there have been no previous incidences of the accused person interfering with witnesses.

25. The prosecution in my view, has failed to present any cogent evidence to support the allegations in the affidavit of compelling reasons. Having carefully considered the grounds relied on, it is my view that the reasons given do not pass the test set out under Article 49(1)(h) of the Constitution.

Conclusion 26. It is my considered opinion that the prosecution has not proved on a balance of probabilities that there are compelling reasons to warrant the denial of bail. The accused shall therefore be released on the following terms:-a.Bond of KSh.1,000,000 with one surety of a like amount.b.He shall not leave the jurisdiction of this court without its permission.c.That the accused will not interfere with the prosecution witnesses,

27. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF MARCH 2025. F. MUCHEMIJUDGE