https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12698

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI** **CRIMINAL CASE NO E004 OF 2026** **REPUBLIC** **VERSUS** **MUSA LEWARANI ALIAS MOSE………..………………………………. ACCUSED** **RULING** **INTRODUCTION** 1. The Accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty. He applied to be admitted to reasonable bail/bond terms. 2. The Prosecution opposed the Accused person’s application for bail/bond through the Affidavit Opposing Bail/Bond of No 260097 PC Kefah Nyagwencha that was sworn on 10th April 2026. It averred that it had overwhelming and irrefutable evidence that pointed to the Accused person’s guilt. 3. It asserted that although an accused person was entitled to bail or bond under Article 49(1)(h) of the Constitution of Kenya, the right was not absolute and could be limited where compelling reasons were established. It opposed the application on the grounds that the Accused person was a flight risk, was likely to interfere with Prosecution’s witnesses, had no known permanent place of abode, and was facing a serious charge attracting a severe penalty. 4. In his Replying Affidavit that was sworn on 21st April 2026 and filed on 10th June 2026, the Accused person denied the assertions and maintained that they were unsupported by evidence. He stated that he had a permanent residence at Lematonyi near Posta Shopping Centre in Laikipia West Sub-County, enjoyed strong family and community support, and was the sole breadwinner for his two (2) wives and five (5) children. He undertook to attend court whenever required and maintained that his release on bail or bond would not prejudice the Prosecution’s case. 5. The Probation Office filed a Pre-Bail Report dated 28th May 2026 and filed on even date. 6. The Prosecution's Written Submissions were dated and filed on 26th May 2026, while the Accused person’s Written Submissions were dated and filed on 10th June 2026. Subsequently, the Accused person filed Further Written Submissions dated 22nd July 2026and filed on 23rd July 2026. The Ruling herein was based on the parties’ Written Submissions, which they relied upon in their entirety. **LEGAL ANALYSIS** 1. The Prosecution reiterated the averments in its Affidavit Opposing Bond in its Written Submissions. It relied on **Republic vs Fredrick Ole Leliman & 4 Others[2016] eKLR** where the court recognised the risk of witness interference as a compelling reason for denying bail. It held that self-preservation was a natural reaction and could take the form of suppressing evidence. 2. Further, it relied on **Republic vs Ahmed Mohammed Omar & 6 Others [2010] eKLR** and **Republic vs Milton Kabulit & 6 Others [2011] eKLR** where the courts held that the gravity of the charge and the severity of the likely sentence were relevant considerations in determining whether compelling reasons existed to deny bail. 3. It also submitted that the evidence against the Accused person was overwhelming and that this increased the likelihood of absconding. In support of that proposition, it relied on **Republic vs Margaret Nyaguthi Kimeu [2013] eKLR** where the court considered the strength of the prosecution's evidence alongside the seriousness of the offence in declining to admit the accused person to bail. 4. It relied on the case of **Republic vs Joseph Kuria Irungu & Another [2018] eKLR** where the court held that the absence of a fixed abode and meaningful social or economic ties increased the likelihood of an accused person absconding. 5. It contended that some of the witnesses were neighbours of the Accused person and were known to him. It stated that, having been supplied with the committal bundle, he was aware of the witnesses and their places of abode, creating a reasonable apprehension that he could interfere with or intimidate them. It relied on **Republic vs Fredrick Ole Leliman & 4 Others** (Supra) where the court recognised the risk of witness interference as a compelling reason for denying bail. It held that self-preservation was a natural reaction and could take the form of suppressing evidence. 6. Further, it relied on **Republic vs Ahmed Mohammed Omar & 6 Others** (Supra) and **Republic vs Milton Kabulit & 6 Others [2011] eKLR** where the courts held that the gravity of the charge and the severity of the likely sentence were relevant considerations in determining whether compelling reasons existed to deny bail. 7. It also submitted that the evidence against the Accused person was overwhelming and that this increased the likelihood of absconding. In support of that proposition, it relied on **Republic vs Margaret Nyaguthi Kimeu [2013] eKLR** where the court considered the strength of the prosecution's evidence alongside the seriousness of the offence in declining to admit the accused person to bail. 8. The Accused person also reiterated his contentions in his Replying Affidavit. He submitted that the Prosecution had failed to discharge the burden of establishing compelling reasons for his continued detention, as the allegations contained in the Affidavit Opposing Bail/Bond were unsupported by evidence. 9. He submitted that the allegation of witness interference was speculative and unsupported by any evidence of threats, intimidation or communication with Prosecution’s witnesses. He argued that mere acquaintance with a witness could not, without more, justify denial of bail. He relied on the decisions in **Republic vs Richard David Alden [2016] eKLR**, **Maweu v Republic (Criminal Case E083 of 2021) [2022] KEHC 13182 (KLR)**, and the **Criminal Procedure Bench Book**, which required allegations of witness interference to be supported by cogent evidence. 10. The Accused person acknowledged that he faced a murder charge but submitted that the seriousness of the offence and the severity of the possible sentence, standing alone, could not amount to compelling reasons for denial of bail. He argued that treating capital charges as automatically excluding bail would violate Article 49(1)(h) of the Constitution and the presumption of innocence. He relied on the case of **Republic v Ahmed Mohammed Omar & 6 Others (Criminal Case No. 14 of 2010) [2012] eKLR**, where the court held that the seriousness of a charge alone could not justify denial of bail and that the primary consideration was whether reasonable conditions could secure attendance at trial. 11. He further submitted that the strength of the Prosecution’s case could only be determined after the evidence had been tested through trial and cross-examination. He argued that it would be premature for the court to assess the evidence at the bail stage and relied on the cases of **Maweu vs Republic** (Supra) and **Michael Juma Oyamo & Another vs Republic [2019] eKLR** in support. 12. He denied being a flight risk and submitted that he had a permanent residence at Lematonyi Village within Laikipia North Sub-County, strong family and community ties and a reliable support system to ensure his attendance in court. He argued that any concerns regarding his attendance could adequately be addressed through appropriate bond terms. 13. He submitted that the Pre-Bail Report had rebutted the Prosecution’s contention that he lacked a fixed abode and demonstrated that he had strong social ties, family support and adequate guarantees to secure his attendance at trial. He, therefore, urged the court to adopt the report’s recommendation and admit him to bail or bond on reasonable terms. 14. According to the Pre-Bail Report of Benson Gathegea, Probation Officer, Nanyuki, the Accused person had no previous criminal record, had never breached bond terms, enjoyed family support and had an elder brother willing to stand surety by depositing a title deed as security and have the Accused person live in his homestead instead of the Lematonyi Village so that he could monitor him and ensure that he adhered to all sanctions that were imposed by the court.. The Accused person was said to understand the seriousness of the offence. 15. The Pre-Bail Report further indicated that the deceased’s family did not oppose his release and considered the incident an unfortunate occurrence arising from the duties he was performing as a night guard. The said family did not hold any bitterness against the Accused person. A brother to the deceased indicated that the family had been in touch with the Village Elder and the Accused person to resolve the issue as was their custom. 16. Similarly, the local administration raised no objection to the Accused person being released on bail/bond. However, the Investigating Officer maintained that the Accused person remained a flight risk and recommended that release be considered after key witnesses had testified. 17. The Probation Office recommended that the Accused be considered suitable for release on bail/bond as he was presumed innocent until proven guilty. 18. Article 49(1)(h) of the Constitution of Kenya, 2010 provides as follows:- **“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 not to be released.”** 1. Although this right was not absolute, the burden rested upon the Prosecution to demonstrate the existence of compelling reasons. In determining whether compelling reasons existed, Section 123A of the Criminal Procedure Code and the Bail and Bond Policy Guidelines required the court to consider factors including the nature of the offence, the character and community ties of the accused person, the likelihood of interference with witnesses and the strength of the prosecution’s case. 2. In the case of **Michael Juma Oyamo & Another vs Republic [2019] eKLR**, the Court of Appeal held that the right to bail could only be limited where compelling reasons had been established and that such reasons had to be forceful, convincing and founded upon credible evidence rather than mere suspicion or speculation. 3. This court found that proximity between the Accused person and witnesses could not in itself amount to a compelling reason to deny him bail/bond. Indeed, the Prosecution did not place before this court evidence of actual threat, intimidation, communication or attempt by the Accused person to influence witnesses. 4. Going further, this court acknowledged that the charge of murder was serious and that the possible sentence was a relevant consideration under Section 123A of the Criminal Procedure Code. However, the seriousness of the offence alone could also not constitute a compelling reason for denial of bail as was held in the case of **Republic vs Kahira & 4 Others [2025] KEHC 9338 (KLR)**. 5. At the bail stage, the court was not required to determine the merits of the evidence or conduct a mini-trial as was held in **Michael Juma Oyamo & Another vs Republic** (Supra) as it could prejudice the eventual determination of the trial. 6. The Pre-Bail Report and the material placed before the court demonstrated that the Accused person had a fixed place of abode, family ties within the jurisdiction, employment history and had not demonstrated conduct suggesting that he was likely to abscond. 7. Having considered the totality of the circumstances, the court found that the Prosecution had failed to discharge the burden of demonstrating compelling reasons sufficient to justify continued detention of the Accused person particularly because the local administration did not consider him to be a flight risk and the deceased’s family did not harbour any bitterness against him and had in fact tried to resolve the matter according to their customs. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Accused person’s application for bail/bond was merited and was allowed. The Accused person be and is hereby released on a personal bond of Kshs 500,000/= with a surety of a similar amount. 2. It is so ordered. **DATED** and **DELIVERED** at **NANYUKI** this **31st** day of **July** 2026 **J. KAMAU** **JUDGE**