https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8455

Republic v Njoroge alias Peter (Criminal Case E039 of 2021) [2026] KEHC 8455 (KLR) (Crim) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8455 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Case E039 of 2021 MW Muigai, J June 11, 2026 Between Republic Prosecution and Benson Murago Njoroge alias Peter alias Kachali Accused Ruling 1.The Accused was charged with murder contrary to Section 204 of the Penal Code, the particulars of the offence are that: On 13th September 2020 along Kombo Munyiri in Kamukunji sub country within Nairobi murdered Samuel Kamande Wairimu. 2.The Accused person was arraigned before this Court for mental assessments and later plea-taking and age assessment. The Accused pleaded to the charges not guilty. 3.The Accused lodged his application for bond vide Notice of Motion and Supporting Affidavit where he prays for admission on reasonable bail terms. Grounds of Application & Supporting Affidavit 4.The Application is brought on grounds that:The accused has been in custody since his arrest in 2021. 5.The Constitution of Kenya 2010 provides that every offence is bailable unless otherwise proved by compelling reasons by the Prosecution. 6.That the Accused is willing to comply with such terms and conditions that the court finds fit 7.The Accused relies on the presumption of innocence until proved guilty as his constitutional right. That the right is translated to the right to be granted bail. 8.That his sister Elizabeth Wanjiku Kiarie swore Affidavit dated 15/10/2021 in support of the accused application for bond. That she was willing to accommodate the Accused person should he be granted bail/bond. She is also willing to avail herself as his contact person. That he is not flight brisk and he will present himself. She depones that she is a business woman within Kiambu county and has a varying income. She depends on profits made from the business after she has paid salaries taxes and other upcoming expenses. 9.That she resides in Kiambu near Ndumberi Primary School and she is ready and willing to offer a permanent abode to the accused. The Prosecution’s Opposition. 10.The Prosecution’s Replying Affidavit is not on record. The Court has been referred to the affidavit of PC Boniface Ongele of Kamukunji Police Station. Written Submissions 11.Parties filed written submissions on the accused application for bond.The prosecution refer to the affidavit of PC Boniface Ongele and that it outlines strong reasons warranting denial of the accused right to bond. 12.That the court considers the strength of the Prosecution case and the serious nature of the charge; evidence on record, the serious charge of murder and severe penalty in case of conviction. 13.Republic vs Fredrick Leliman & 4 Others [2016] eKLRThe prosecution submits that the evidence comprises multiple eye witnesses who heard the accused utter threats after the attack and post mortem. That the court considers the overwhelming evidence and the gravity of offence. Further that the probability of the accused absconding is exceptionally high. 14.That the accused is a flight risk and that he lacks a Fixed abode and/or permanent residence or substantial community/family ties within the court’s jurisdiction.The prosecution refers to the case of Republic -Vs- Justus Munyua Mwasya 2017 KEHC 177 eKLR; where the court found that the location of the home is an important aspect. That it is not in the interest of justice to release a person who may not be traced should he abscond. 15.The prosecution also submits that there is apprehension of witness interference. That the witnesses, the accused and the deceased colleagues and fellow trolley pushers at Gikomba market. That the accused knows their identities and has already demonstrated volatile and violent disposition. That his release will place witnesses under fear and intimidation. The prosecution refers to the case of R –vs- William Masika Tasika 2020 eKLR where the court held that intended witnesses were neighbours and co-workers and that the accused presence created a real likelihood of interference of justice. That there is need to secure the testimony of witnesses in the instant case where hearing is yet to commence. 16.Lastly, that the application should be denied on ground of public order. That his release will reignite public anger and lead to breach of the peace. The Court to take judicial notice of the circumstances surrounding arrest. The Accused person’s actions that led to the present charge were heinous that incited public mob justice/lynching at the scene and the Accused person was rescued by swift intervention of Police officers. Releasing the Accused person to the community that sought instant justice against him may re-ignite public anger and lead to severe breach of peace and would be detrimental to public order and safety. The Accused/Applicant’s Submissions . 17.The accused submits that the prosecution failed to demonstrate compelling reasons. That the accused sister swore her affidavit and stated that she will host him during the case. That the prosecution has not met the threshold of establishing compelling reasons militating against granting him bail. 18.The Accused relied on Article 49(1) (h) of the Constitution that unless there are real and cogent grounds that meet high standards of the Constitution; compelling reasons the Accused person ought to be granted bail and bond. Prebail Report. 19.The Pre-bail report indicates that the Accused /Applicant is the 2nd born child in his family and that his relationship with his siblings is largely estranged. That he left home and relocated to Nairobi Gikomba area due to poverty and lack of interest in Education . Then he became a street urchin, he would still return home to establish family relations. He was picked up from the street and enrolled in Donbosco Primary school for 3 years, he was reintegrated back to the community where he engaged in casual labour ferrying clothes and other items from one location to another within Gikomba market in Nairobi until the time of the offence. 20.He is not married and he does not suffer from any medical ailment that may interfere with adherence bail /bond terms.He also admitted to substance abuse mainly bhang and alcohol for a while until the time his arrest. However, using them will not interfere with adherence to bail.The accused has been in custody for six years from the time of admission. That the Accused’s step sister is supportive and prays for admission to bail. She will also ensure he attends court whenever required until the matter comes to a logical conclusion. She acknowledges the gravity of the offence and severity to be meted. 21.Accused also admits the severity of the sentence to be meted upon if found guilty. The Accused undertakes to abide by the conditions set by the Hon. Court should he be admitted to bail bond. 22.The victim’s family views are on the report. The victim /deceased was aged 35 years and a 2nd born of 3, he relocated to Nairobi and settled in Kahawa west.The deceased took up casual jobs at Gikomba and was also known to the accused. The family is traumatized by the death which is also compounded by fact that the suspect is known to them. He does not have a fixed abode and he is also a flight risk. The deceased family is also apprehensive that bail will create an opportunity for the accused to interfere with witnesses. That he is known to them. 23.The community views are on record, the Accused is a well behaved person and is taken aback by the offence. The local administration opposed his release and take the view that his presence is likely to cause negative change on peace and stability. 24.The Probation Officer notes that the accused sister is willing to provide security and be his surety but seeks lenient cash bail. The Assistant Chief and community members cite high crime area, the community is hostile and his release may cause him harm. That the accused may not be viable for bond. Analysis & Determination. 25.I have considered the application and the submissions filed by Parties/Counsel I have also considered the Pre-bail report and various observations on the Accused eligibility for bail. 26.Article 49 (1) (h) of Constitution; provides for the right to bail from the time of arrest and final trial of a suspect/ arrested person. It also applies as a right to fair trial to persons who are already charged before court.The right to bail can be limited where the prosecution proves compelling grounds. The court is also guided by various considerations listed under Section 123 (A) of the Criminal Procedure Code. 27.Compelling reasons is not defined in the Constitution or provisions of statute. In Michael Juma Oyamo & another v Republic [2019] eKLR the Court of Appeal explained the threshold placed on the prosecution as follows:- dealing“23.We have carefully considered the record of appeal, the submissions by counsel and the various authorities cited. Article 49(1) (h) of the Constitution states that an arrested person has the right “to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons”. It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person. We wish to adopt the definition of what amounts to compelling reasons as defined by the High Court in R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 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 standards set by the Constitution.” 28.In Republic v Sifuna [2023] KEHC 22379 (KLR) Hon.Mrima J also considered various definitions of the term compelling reasons and the threshold for granting bail.“Given the amorphous nature of the term ‘compelling reasons’ or ‘exceptional circumstances’, a Court while exercising its discretion in dealing with a bail and bond application must ‘consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release’ and must also balance “between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown….”. In Kenya those ‘compelling reasons’ or ‘exceptional circumstances’ must be demonstrated by the prosecution.” 29.The Court cited the case of Republic v Pascal Ochieng Lawrence [2014] eKLR: -" where the court listed guiding consideration as follows“It is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the State. The Court in exercising its discretion as to whether or not to grant bond is, however, to be guided by the following parameters: -• the seriousness of the offence although this carried greater weight under the old constitutional dispensation;• the weight of the evidence so far adduced if the case is partly heard;• the possibility of the accused interfering with witnesses;• the safety and protection of the accused once he/she is released on bail/bond;• whether the accused will turn up for trial;• Whether the release of the accused will jeopardize the security of the community.” 30.The Prosecution lists the following grounds as compelling reasons to limit the accused right to be admitted to bail and bond.1.The severity of the offence and sentence and the evidence against the accused.2.That the accused is a flight risk and lacks a place of abode3.That the accused is likely to interfere with witnesses4.That release on bail will interfere with public order and peace. 32.Section 123A of the Criminal Procedure Code (1) (2) Subject to Article 49(1)(h) of the Constitution speak the legal parameters of grant/withhold of bail/bond terms. In Republic v Danson Mgunya & Another. HCCR no. 26 of 2008 the Court held that severity of the charge and the sentence comes with temptation to abscond . 33.The severity of the offence and sentence and the evidence against the accused. A person is presumed innocent until proved guilty at trial. I find that the trial has not commenced and that witness statements and results of investigations relied have to be subjected to cross examination to test credibility of witnesses and veracity of evidence. That strength of the evidence is best considered at the advanced stages of the trial and/or when the accused is placed on his defense. 34.The accused is a flight risk and lacks a place of abode.I have considered the affidavit of Elizabeth Kiarie filed in the case. She indicates to Court that she will avail a permanent place of abode for the accused at her residence in Kiambu. Also that she depends on her business income and that she will stand in as surety for the accused. The prebail report indicates that she is the accused step sister. The sister prays for lenient bail terms and that the family does not have a title deed. 35.Witness interference-The victim views and the accused admission in the Pre-bail report highlight that the accused and the deceased were casual laborers within Gikomba area. The victims also indicate that the witnesses are known to the accused which is not disputed in the further affidavit filed by the accused. The Pre-bail report also indicates hostility and that the accused life will be at risk if he is released on bond. The offence occurred in the year 2021 and the accused has been in remand custody since his arrest which has been a period of about 6 years . There is no evidence of witness interference threatening of influence by the accused while he has been in custody. 36.Witness interference must also be established beyond mere speculation and the threshold is met when some witnesses are identified and necessary facts are adduced proving possibility of the accused reaching them. 37.In the instant case, the Prosecution established there is apprehension of witness interference as the witnesses, the accused and the deceased were all friends and fellow trolley pushers at Gikomba market. That the accused knows their identities he demonstrated volatile and violent disposition. That his release will place witnesses under fear and intimidation especially as the Trial has never started todate and they have not testified yet. 38.In Panju –Vs- Republic [1973] EA 284, the Court dismissed the prosecutor's fear of interference with witnesses stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking courts to speculate. However , the close relation , association and proximity between the accused and the witnesses can create real apprehension of witness interference . 39.In Republic v Fredrick Ole Leliman & 4 others [2016] KEHC 992 (KLR) the High court was reffered to Republic v David Ochieng Ajwang Alias Daudi & 11 others (2013) eKLR and found that potential witnesses who come from the same area as the Applicants/ accused pose threat to the evidence . The court held at paragraph 78 that“.. It is not disputed by the defence that the accused persons hail from the same locality as the potential witnesses, and this being the case, the danger of such witnesses being driven into a corner by the presence of the accused persons so soon after the ghastly death of the deceased persons is a real possibility.” 40.That release on bail will interfere with public order and peace.The Prosecution submitted that the Accused person was subject of public mob justice/lynching at the scene and the Accused person was rescued by swift intervention of Police officers. The Assistant Chief and community members cite high crime area, the community is hostile and his release may cause him harm. 41.I have considered the Pre-bail report and the age of the matter, the Accused person has been in custody and his matter has not commenced todate. Although he now has fixed abode from his sister/stepsister, the issue of victim’s views and closeness to friends as witnesses and apparent hostility, the Court has to protect the Accused person’s liberty and at the same time Community’s safety and security. The Court in balancing all parties rights will err on the side of caution on the following orders; Disposition1.I have considered the totality of the case, I find that bond is a constitutional right is based on presumption of innocence until proved guilty at trial2.That compelling grounds exist in the case as explained by Prosecution especially witnesses safety and possible interference and in the interest of justice, the following directions are granted :-3.The accused right to bail is withheld at this stage and shall be reviewed at a later stage after commencement of trial and the relevant/crucial witnesses testify at the trial.4.The prosecution shall arraign key witnesses and take reasonable steps to fast-track the trial.Further mention for Directions on 25/6/2026 DELIVERED DATED & SIGNED IN OPEN COURT AT CRIMINAL DIVISION NAIROBI THIS 11/6/2026 PHYSICALLY/VIRTUALLY.M.W.MUIGAIJUDGE