https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11758

Republic v Nyoike (Criminal Case E003 of 2026) [2026] KEHC 11758 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 11758 (KLR) Republic of Kenya In the High Court at Kibera Criminal Case E003 of 2026 DR Kavedza, J July 30, 2026 Between Republic Prosecutor and Kenneth Njoroge Nyoike Accused Ruling 1.The accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap. 63, Laws of Kenya. The particulars of the information allege that on 16th and 17th January 2026 at Ng'ando Area, Dagoretti Sub-County, Nairobi County, he murdered Joan Mumbi Muthee. 2.The accused pleaded not guilty and now seeks to be admitted to reasonable bail or bond pending trial. 3.The application is opposed through the replying affidavit of CPL Vincent Sairo, the investigating officer, sworn on 11th May 2026. He acknowledges that the right to bail is constitutionally guaranteed but contends that compelling reasons exist to justify its denial. He depones that the deceased was the accused's girlfriend and that key prosecution witnesses include the accused's son and other close family members, placing the accused in a position of influence over them. He further states that immediately after the alleged offence, the accused fled the scene and was arrested two days later while allegedly attempting to take his own life. The investigating officer therefore maintains that the accused presents a risk of interfering with witnesses and poses a danger to himself, thereby justifying the refusal of bail. 4.In response, the accused swore an affidavit dated 3rd July 2026 denying the allegations. He states that he has been the primary caregiver of his son since separating from the deceased and that his continued incarceration has occasioned hardship to his children. He depones that he has a fixed abode, strong family and community ties, and should continue to enjoy the presumption of innocence. He dismisses the prosecution's allegations as speculative, contends that the neighbours who were potential witnesses have since relocated, and undertakes to comply with any conditions that the court may impose. 5.The pre-bail report confirms that the accused has resided in Dagoretti for several years, derives income from rental property situated on family land, and has no known previous criminal record or history of breaching court orders or bond terms. He acknowledges the seriousness of the charge, expresses willingness to attend court whenever required, and undertakes to abide by all bond conditions. 6.The inquiry further established that the accused's immediate family members are unable and unwilling to stand surety. The family land remains registered in the name of their deceased mother, leaving them without property capable of securing his release. They also expressed concerns about their ability to supervise the accused and his emotional well-being following the reported suicide attempt. However, the accused's estranged wife indicated that she is willing to facilitate his release by raising cash bail, providing suitable security acceptable to the court, acting as his contact person, and ensuring his attendance throughout the trial. 7.The deceased's family strongly opposes the application. They express fears for their safety and contend that the accused is likely to interfere with prosecution witnesses who reside within the vicinity of the scene of the alleged offence. They further state that the deceased's death has had profound emotional and financial consequences, particularly upon the deceased's father, who has assumed sole parental responsibility for her two-year-old daughter. 8.According to the local administration, the accused is well known within the locality and has no known criminal history. Nevertheless, concerns were raised regarding alleged threats made before the incident, his disappearance from the locality after the alleged offence, the reported suicide attempt, and a previous history of alcohol and substance abuse. These matters raise concerns regarding his emotional stability and his ability to comply with bond terms. The report, however, confirms that the community remains calm and no hostility has been reported. 9.The application was canvassed by way of oral submissions which have been duly considered. 10.The issue for consideration is whether the prosecution provided compelling reasons to warrant the denial of bail/bond. 11.Article 49(1) (h) of the Constitution guarantees the right of an arrested person to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons for the person not to be released. The onus of proof in bail applications in respect of compelling reasons is borne by the state under section 123A of the Criminal Procedure Code (Cap 75) Laws of Kenya. The right for an accused person to be released on bail is not absolute. 12.In determining whether the interest of justice dictates the exercise of discretion under Article 49 (h) of the Constitution, the courts are to be guided by the provisions of section 123A of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides:“In such a determination the courts are to factor the following exceptions to limit the right to bail;(a)Nature or seriousness of the offence;(b)The character, antecedents, associations, and community of the accused person;(c)The defendants record in respect of the fulfilment of obligations under previous grant of bail;(d)The strength of the evidence of his having committed the offence:(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 has failed to surrender to custody if released on bail, it is likely that he would fail to surrender to custody;(b)Should be kept in custody for his own good. 13.The prosecution principally relies on the likelihood of interference with witnesses. It contends that the deceased was the accused's girlfriend and that key prosecution witnesses include the accused's son, other close family members, and witnesses residing within the vicinity of the scene of the alleged offence. It is further argued that, by reason of these close familial and personal relationships, the accused is in a position to influence or interfere with those witnesses if released on bond. 14.The Court must assess those concerns against the circumstances of this case. The accused shares close familial ties with some of the intended witnesses, while others are members of the immediate neighbourhood where the alleged offence occurred. Such proximity presents both the opportunity and the means to influence witnesses, whether directly or indirectly. The concern is further reinforced by the allegation that the accused fled the scene after the incident and was apprehended two days later. Although those allegations remain to be tested at trial, they are relevant in assessing the likelihood of interference and the proper administration of justice at this stage. 15.The applicable legal principle was stated in Republic v Dwight Sagaray & 4 others [2013] KEHC 3824 (KLR), where the Court held:“As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criterion however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others." 16.A similar position was adopted in Republic v Joktan Mayende & 3 others [2012] KEHC 5551 (KLR), where the Court observed:“Interference with witnesses covers a wide range; it can be immediately on commission of the offence, during investigations, at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons. The descriptors of the kind of acts which amount to interference with witnesses are varied and numerous but it is the court which decides in the circumstances of each case if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused." 17.Applying those principles to the present case, the intended witnesses include the accused's son and other close family members, while others reside within the locality where the alleged offence occurred. The close relationship between the accused and those witnesses places him in a position capable of exerting influence over them. This concern is compounded by the allegations that he absconded immediately after the incident and was subsequently apprehended following an alleged suicide attempt, circumstances which also raise concerns regarding his emotional stability and compliance with bond terms. 18.Viewed cumulatively, these factors establish a credible likelihood of interference with witnesses, which cannot, at this stage, be adequately mitigated through the imposition of bond conditions. 19.Consequently, the Court finds that the prosecution has established compelling reasons within the meaning of Article 49(1)(h) of the Constitution to warrant the denial of bail pending trial. The application is accordingly dismissed. The accused shall remain in custody but is at liberty to renew the application after the testimony of the key prosecution witnesses or upon a material change in circumstances.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026D. KAVEDZAJUDGEIn the presence of:Ms. Maina for the ProsecutionMs. Kathurima for the AccusedKarimi Court Assistant.Page 2 of 2