https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12774

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI** **CRIMINAL CASE NO E007 OF 2026** **REPUBLIC** **VERSUS** **TIMOTHY MUYA GATHITU……..………..………………………………. 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 of No 260171 PC Kevin Miheso that was sworn on 4th May 2026 and filed on even date. 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. 4. The Probation Office filed a Pre-Bail Report dated 22nd July 2026 on even date. 5. It opposed the application on the grounds that the Accused person was a flight risk, he was likely to interfere with Prosecution witnesses, his release could undermine public order and security, and the charge was serious and that the possible sentence created an incentive for him to abscond. It added that the Accused person had no known permanent place of abode or familial or economic ties and it would be impossible for the Investigating Officer to trace him if he was released on bail/bond. 6. In his Replying Affidavit that was sworn and filed on 4th May 2026, the Accused person maintained that the grounds the Prosecution had raised for him to be denied bail/bond were speculative and unsupported by evidence. He stated that he had strong family ties, a known place of abode, and persons willing to support him in complying with any conditions that the court would impose. He undertook to attend court whenever required, to comply with all bail terms, and not to interfere with Prosecution’s witnesses. 7. The Prosecution's Written Submissions were dated 18th May 2026 and filed on 19th May 2026 while those of the Accused person were dated 20th May 2026 and filed on 21st May 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 Bail/Bond in its Written Submissions. 2. 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. 3. It referred this court to the case of **Republic vs Fredrick Ole Leliman & 4 Others[2016] eKLR** where it was held that the risk of witness interference as a compelling reason for denying bail. The underlying principle was that self-preservation was a natural reaction of human beings and they could go to great lengths to suppress evidence. 4. 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. 5. 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. 6. 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. 7. Further, it submitted that the community around Ntukurumah area remained shocked by the death of the deceased and that the Accused person’s release could expose him to revenge attacks and disturb public peace. In support 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. 8. 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. 9. The Accused person also reiterated his contentions in his Replying Affidavit. He submitted that Article 49(1)(h) of the Constitution guaranteed every arrested person the right to be released on bail or bond on reasonable conditions unless the Prosecution demonstrated compelling reasons to justify continued detention. He relied on the decisions in **Republic vs Danson Mgunya & Another [2010] eKLR**, **Republic vs Dwight Sagaray & 4 Others [2013] eKLR** and **Republic vs Joktan Mayende & 3 Others [2012] eKLR** to argue that the burden rested on the Prosecution to establish compelling reasons and that bail could not be denied merely because the charge was serious. 10. He submitted that the allegation that he was a flight risk was unfounded as he had a known place of abode and strong family ties within and around Nanyuki. He further submitted that he was willing to comply with any bail or bond terms imposed by the court, including attending court whenever required, reporting to a police station as directed and not leaving the jurisdiction of the court without prior leave. 11. The Accused person contended that the allegation that he was likely to interfere with the Prosecution’s witnesses was speculative and unsupported by any cogent evidence. He argued that the Prosecution had not demonstrated any actual attempt or threat on his part to contact, intimidate or influence witnesses. He added that any such concerns could adequately be addressed through appropriate bail conditions, including a strict order prohibiting contact with the Prosecution’s witnesses. 12. He added that the allegation by the Prosecution that his release would undermine public order or expose him to revenge attacks was unsupported by evidence and did not, of itself, constitute a compelling reason to deny bail. He argued that any concerns regarding public peace or his safety could be addressed through appropriate conditions restricting his place of residence or movement pending trial. 13. He asserted that although the charge of murder was serious and attracted a severe sentence, those factors alone did not amount to compelling reasons for denial of bail. He further argued that the Prosecution's assertion that it had a strong case against him could not justify curtailing his constitutional right to bail before trial, as he remained presumed innocent until proved guilty. He therefore urged the court to 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 which was willing to stand by him during trial and ensure that he attended court, which reflected their confidence in him. His sister was willing to stand surety for him and to deposit the Title Deed as security. She was confident of monitoring him throughout the trial. . 15. The Accused person was said to have been employed before his arrest and taking care of the deceased’s children, an indication that he had maintained a relatively structured life. He had no criminal history. He acknowledged the weighty legal and personal consequence of the offence. 16. The secondary victims were bitter following the death of the deceased in the hands of a person she trusted. They vehemently opposed the Accused person being granted bail/bond. The Investigating Officer stated that the Accused person was a flight risk as he did not come from Ntukurumah area making tracing him difficult and hence, strongly objected to his release on bond/bail. . 17. On the other hand, the Accused person was said to have strong community ties. His landlord described him as a responsible, humble and cooperative person. The Probation Office did not find any evidence that the Accused person was a flight risk and hence, recommended that he be granted 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 exist, 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 an 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 not constitute a compelling reason for denying bail. Although the severity of the possible sentence was a relevant consideration, it could not by itself justify refusal 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 he was not a threat to the community and he was not threatened by the community. He had strong social support and was not a flight risk. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Accused person’s application for bail was merited and the same be and is hereby allowed. The Accused person was 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**