https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11737

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **CRIMINAL CASE NO E064 OF 2024** **REPUBLIC----------------------------------------------------------PROSECUTION** **VERSUS** **JOSPHAT KURIA NJERI----------------------------------------------ACCUSED** **RULING** 1. The accused person is charged with the offence of Murder contrary to Section 203 as read with 204 of the Penal Code Cap 63 Laws of Kenya. 2. The particulars of offence are that JOSPHAT KURIA NJERI On the night of 16th September,2024 at Majengo Area within Githurai in Kasarani Sub County, within Nairobi County murdered BEN WAFULA OUTA. 3. Ms Kinoti Counsel for the accused moved this court to consider the accused person’s application dated 3rd February, 2026 seeking his release on bail pending trial. 4. Counsel relied on Article 49 of the Constitution. Counsel submitted that since the matter is partly heard and key witness have testified, the court should be inclined to grant the accused person bail. 5. According to counsel for the accused the affidavit by P.C Tonui relied on by the prosecution previously to oppose bail had given the compelling reason as the likelihood of interference with a key witness. 6. Counsel submitted that the witness having testified there was no longer any conceivable danger to the witness thus circumstances have changed in favor of grant of bail to the accused person. 7. The other issue raised by the prosecution was that he might be a flight risk and in answer to that counsel urged the court to call for a probation officer’s report so as to satisfy itself as to the suitability of the accused to be admitted to bail. 8. According to counsel the allegation of the accused being a flight risk was not backed by any evidence. 9. MS NJOROGE Prosecution Counsel opposed the renewed application for bail relying on the affidavit of PC Eric Tonui sworn on 30th October 2024. 10. Counsel maintained that although the witnesses had testified, the accused remained a flight risk. 11. According to Counsel the fixed abode of the accused remained unknown and that he was not gainfully employed thus tracing him once out on bail would be difficult for the investigation officer should the accused person abscond. 12. Further, counsel for the prosecution submitted that the case had proceeded considerably and that they are left with barely 4 witnesses to close their case. 13. Counsel argued that the accused may be tempted to evade trial since he already knows the evidence against him. 14. However, counsel urged the court to consider imposing stringent bail conditions should the court be inclined to grant the orders sought. 15. MS. KINOTI in reply urged the court to grant the accused an opportunity to provide the details required through a pre-bail report. **ANALYSIS AND DETERMINATION** 1. The primary consideration in deciding whether or not to grant bail to an accused person pending trial is whether the accused person would be able to return to court and face his trial. See **R vs DANSON MGUNYA $ Another (2010) eKLR** 2. The court under Article 49 of the Constitution would be within the law to decline to grant bail if there are compelling reasons to do so. 3. Compelling reasons is relative phrase and such reasons will vary from case to case. 4. The mere fact that the offence with which an accused is charged carries a serious sentence is not necessarily a reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond from appearing for trial. The same goes for the evidence so far received in a trial because a case can drastically turn at any stage and the accused person enjoys the presumption of innocence under Article 50(2) of the Constitution until the time the court finds him guilty of the charge. 5. Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend the trial and whether or not a free and fair trial can be achieved notwithstanding the release of the accused on bond. 6. The court having denied the accused bail in the first instance, must be persuaded that, circumstances have since changed when the accused person renews his quest for bail. 7. The keywitness in this case has since testified and the probation officer has presented a report dated the 18th May 2026 in which the officer states “the accused may not be viable for bond’’. 8. The report highlights the fact that the accused person’s mother is not willing secure the accused bond/ bail. The officer goes on to say that the mother was also not willing to ensure that he attends court whenever required to do so. 9. The accused is also said to be a man who is highly mobile and switches his identity by going by many aliases. 10. The report clearly presents the picture of a man who cannot be trusted by his own mother knowing who mothers are to their sons! This court is thus convinced that releasing the accused person on bail at this stage would amount to taking a gamble on his availability to face trial once released on bail. 11. In [*Republic v Wycliffe Nyakwana Nyamweya*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/7930) (Criminal Revision 135 of 2016) (2016) KEHC 7930 (KLR) (Crim) (28 July 2016) (Ruling) where the court held that; “It is therefore my view that the discretion to grant bail and set the conditions rests with the court. In all cases where the court is called upon to exercise its discretion in regard to whether or not it should grant bail pending trial, the most important consideration is whether the accused will attend court during trial”. 1. A court in granting bail must never lose sight of the interests of justice and should not be inclined to grant bail where in all likelihood the accused is shown to be a man unworthy of trust and whose fixed abode may not be guaranteed. 2. The interests of the administration of justice demand that the court ensures that the criminal justice system functions without a hitch and the court must at all times strike a delicate balance between the rights of the accused and the public interest in ensuring that persons charged with criminal offenses do not evade justice. The stage at which the proceedings are at the time an application for bail is renewed is also an important consideration for the court before it exercises its discretion to grant bail. 3. The High Court in [***Republic v Irungu alias Jowie & another (Criminal Case 51 of 2018***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/9593)**)** [2020] KEHC 8361 (KLR) (Crim) remarked that: ***“Whereas it is clear that the court has discretion to grant bail at any stage during trial, when the application for bail is made during the course of trial, one of the compelling reasons which the court has to take into account is the strength of the prosecution, as provided for under the Bail and Bond Policy Guidelines at 4.9 (b) as follows:-“An accused person should not be subjected to pre-trial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pre-trial detention where the evidence against the accused person is strong. For example, where all the prosecution witnesses have testified and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond as should therefore be denied bail – see Republic v Margaret Nyaguthi Kimeu [2013] eKLR.”*** 1. Although the key witnesses have, and that there is no longer a threat to them, this court finds that the accused is a man who of dubious character in that he uses aliases to conceal identity and the fact that his own mother is unwilling to stand surety for him and is unwilling to commit to the court that he shall return for his trial once released is a very clear indication that he is a flight risk and should therefore remain in custody until the matter is heard and determined. 2. It is not in the character of mothers to forsake their children thus this accused person must belong to the character of those children that parents cannot vouch for. It is sad but a grim reality from the probation officers report. 3. The application therefore fails and the accused person shall accordingly be held in remand pending trial. 4. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **27th** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Habiba: Court Assistant Ms Naulikha for state Ms Kinoti for Accused Accused: Present **.**