https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7703

Republic v Omabane (Criminal Case E058 of 2025) [2026] KEHC 7703 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7703 (KLR) Republic of Kenya In the High Court at Makadara Criminal Case E058 of 2025 J Wakiaga, J June 4, 2026 Between Republic Prosecutor and Jason Mogere Omabane 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 the particulars of which were that on the night of 8th September 2025 at Bypass Mradi in Skyline Area within Embakasi sub County, Nairobi murdered Nelson Momanyi Motanya alias Paul Memba. 2.He pleaded not guilty to the charges and in compliance with the provisions of Article 49(1)(h) of the Constitution the prosecution through PC Allan Mpaima swore an affidavit opposing the release of the accused on bond on the ground that few days prior to the incident , the accused his wife and several goons went to the deceased house and threatened to kill him and that on the material day the at around 1930 hours the accused person had threatened to kill the deceased who shared the same with his wife. 3.That thereafter the accused fled from his known place of residence to unknown place and could not be reached on his known mobile line and procured a new line number 0104……39 which was registered under one Richard Kambuni of ID Number 30…….62 and was at large for 19 days until when he was arrested at his hide out in Nyamira where he resisted arrest an d therefore should he be released on bond the same is likely to be a flight risk. 4.It was deposed that the accused was likely to interfere with six prosecution witnesses being his immediate neighbours who were eye witnesses and the deceased wife who were well known to the accused. It was further contended that there existed a civil dispute between the accused and the deceased over a parcel of land at Embakasi Mradi area being the subject matter of Milimani CMCC NO E 721 of 2025 Daniel Motanya Memba v Omondi Kabare the defendant therein being the accused father of the accused , wherein the court had issued restraining orders from further construction on the property , leading to animosity between the family of the accused and the deceased. 5.That on the 5th September 2025, the deceased was found brutally stabbed to death within the area and that there were several eye witnesses who positively identified the accused being present and directly involved in the attack and that the case had generated strong emotions in the area raising genuine threat to the life and safety of the accused if released on bond and that based on his conduct the same is a flight risk . 6.The prosecution case was supported by the affidavit sworn by the deceased wife Esther Mumbi Mugo on the 14th November 2025 in which she deposed that the deceased was working with the General Service Unit (GSU) at Embakasi training School who was killed over a land dispute. That they had reported the threat by the accused to the local area Chief as the accused and his wife had personally threatened her and her family. 7.She deposed that she was fearful that if released on bail , the accused will be a constant threat to her and family as the issue of the land was yet to be resolved and she has no intention of moving out of her present residence , being a jobless house wife and that whereas the deceased had moved to court for a resolution , the accused took the law in his hand by eliminating the deceased and was likely to eliminate her entire family. 8.In response to the said affidavit the accused swore an affidavit in which he deposed that he did not flee to any place but left for his home at Keumbu from where he was arrested and that he did not change his mobile number and n either acquired a new number as alleged as the said Richard Kambuni was his brother who resides at Nyamira. 9.He deposed that he was not at large and a flight risk having been apprehended and brought to Court in MISC APP.NO E 1760 of 2025 where he was released on bond but did not take advantage thereof to enable the police complete investigations. He contended that he did not know any of the witnesses that had recorded statements with the police but knew that there were hirelings and goons who were to attack him. 10.It was further deposed that he was not a flight risk as he had a fixed place of abode with his school going children and a wife who was a business woman at Embakasi Jua kali. 11.In compliance with the Bail/Bond Policy Guidelines , the court called for pre-bail report in which it was stated that the accused was the sole director of Rento Contractors and was suffering from knee and hip joints which required regular medical check-ups which he had been unable to do while in remand custody. He is married with six children. Before his arrest he resided with his family in Mradi Estate but later moved to a rental house in the Jua kali area and planned to relocate to Kamulu. 12.The local administration confirmed knowing the accused who had no known record of misconduct or criminal behaviour. The investigating officer on the other hand was opposed to the release of the accused on bond on the account of the previous threats from the accused and the fact that after the incidence the accused allegedly switched off his mobile phone and fled to his rural home in Kisii , from where he was arrested . 13.On the victims concern it was stated that the same was married with three children aged 16, 11 and 4 years. The wife engages in small scale business while residing at a family residential house owned by the deceased. There has been a long -standing land dispute between the deceased and the accused father, with threats which were reported to the local area Chief. The deceased was the primary provider for the family and the accused are neighbour and well known to the family whose raised safety concerns based on the previous threats and witness interference . 14.On the recommendation, it was stated that the accused had strong family ties but taking into account the unresolved land dispute , the possibility of witness interference and emotional hostility, the court should defer bail until the environment stabilizes or if granted the accused should reside away from the scene. Submissions 15.The prosecution submitted that there was the issue of interference with witnesses as capture in the pre-bail report. 16.The victims filed written submissions in which it was contended that the court should consider the seriousness of the offence and the severity of the likely punishment as was stated in the case of Republic v Mohamed Abdow Mohamed [2013] eKLR . it was further submitted that the accused was personally known to several of the prosecution witnesses since they reside within the same locality and neighbourhood and that allowing the accused to return to the same locality exposes the witnesses to undue pressure and fear in support of this preposition reference was made to the case of Republic v Fredrick ole leliman & 4 others [2016] eKLR and further that the court should take into account the conduct of the accused who immediately fled and remained in hiding for 19 days before his arrest and disposing his sim card. 17.The accused filed written submissions and stated that the same was not a flight risk and that the same did not have the capacity to interfere with witnesses noting that even after being granted pre- charge bond the same did not take advantage thereof since the police did not want him out. Determination 18.Bond is a constitutional right of every accused person under Article 49(1)(h) of the Constitution which can only be limited where there exist compelling reasons advanced by the prosecution to the satisfaction of the court on a balance of probability and what the court ought to considered as compelling reasons is stated in section 123A of the Criminal Procedure Code and bail /bond Policy Guidelines and as well stated by the Court of Appeal in Michael Juma Oyamo & Another v Republic [2019] KECA 953 (KLR) thus :.“ 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.” 24.According to the recently launched publication, Crimianl Procedure Bench Book at pages 48 – 51 paragraph 105, compelling reasons may include the likelihood that the accused will fail to attend court; commit or abet the commission of, a serious offence; endanger the safety of victims, individuals or the public; interfere with witnesses or evidence; endanger national security or public safety; and where it is necessary for the protection of the accused. 25.Further, section 123 A(1) of the Criminal Procedure Code which is to be read with section 123 thereof provides as follows: “123A(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the court shall have regard to all the relevant circumstances and in particular -(a)the nature and seriousness of the offence ;(b)the character, antecedents, associations and community ties of the accused person;(c)the defendant’s record in respect of the fulfillment of obligations under previous grants of bail; and;(d)the strength of the evidence of having committed the offence.”Subsection (2) thereof stipulates that 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 and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection.”This Court has had occasion to pronounce itself on all these constitutional and statutory principles regarding bail in Republic v Nuseiba Mohammed Haji Osman [2018] eKLR where the Court stated,inter alia:“Denial of a constitutional right is not a matter to be treated lightly and therefore any claims made against an accused person aimed at curtailing the constitutional right to liberty must not be made on speculation or conjecture.”We find this explanation insufficient. Paragraph 106 of the Criminal Procedure Bench Book states as follows:“106. The fact that the accused has been supplied with witness statements does not warrant the denial of bail, unless there is evidence of a real likelihood of the accused interfering with witnesses (R V Peter Mawia High Court at Machakos Criminal Case No. 48 Of 2015). Bail should not, therefore, be denied on weak grounds but on real and cogent grounds that meet the highest standards set in the Constitution. Allegations of witness interference must be supported by evidence. (R v Anthony Mgendi Mbungu & Another High Court At Embu Criminal Case No. 34 Of 2015).” 19.I am persuaded by the above preposition of the law by the Court of Appeal and has nothing more useful to add save as herein under. 20.The court in Republic versus Francis Kimathi [2017] eKLR stated that there may not be a scientific measure of what exactly amount to compelling reasons as that would depend on the circumstances of each case but they must be those which is arousing strong interest and attention. 21.In this matter whereas the pre-bail report confirms that the accused has strong family and community ties, the prosecution has presented evidence an allegation of threats to the deceased and his family and the accused at paragraph 10 of his affidavit in response to the prosecution affidavit opposition grant of bond has admitted that there are hire lines and goons who were to attack him, thus raising the issue of his safety and that of the victim’s family and witnesses. There is also the proximity of the accused and the victim’s family which the court ought to take into account having noted the existence of a court case between the parties herein which has not been denied by the accused . 22.I have also taken into account the fact as confirmed by the accused that he was arrested at his rural home and the manner of that arrest as stated in the affidavit by the IO and whereas the court cannot at this stage measure the risk of the accused absconding court should he be granted bail, it is safe to state that the same can not be wished away 23.These to my mind constitute compelling reasons to enable the court deny the accused the enjoyment of his constitutional right to bail at this stage. The accused shall remain in custody until the victim’s family witnesses and neighbours have testified , then the court shall be at liberty to review the order herein and it is ordered. DATED SIGNED AND DELIVERED THIS 4th DAY OF JUNE 2026J WAKIAGAJUDGEIn the presence of: -