https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12676

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI** **CRIMINAL CASE NO E005 OF 2026** **REPUBLIC** **VERSUS** **ROBERT KINYUA KITHINJI……..………..………………………………. 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 99770 PC Peter Kipsang of Laikipia Central, DCI that was sworn on 6th May 2026 and filed on even date. 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. 3. The Prosecution contended that on 6th April 2026, the Accused person assaulted Moses Kanyi Maina resulting in his death. It asserted that its key witnesses were neighbours of the Accused person at Kihato Village and were known to him, including their places of residence and employment. It was apprehensive that if the Accused person was released on bail/bond, there was a likelihood that he could interfere with, intimidate, or influence the witnesses either directly or through proxies, particularly in view of threats he allegedly made during the assault that he would harm anyone who attempted to assist the deceased. 4. It further submitted that the seriousness of the murder charge, coupled with the possibility of a severe sentence upon conviction, created an incentive for the Accused person to abscond if he was released on bail/bond. It maintained that it had a strong case against the Accused person and urged the Court to find that compelling reasons had been established to justify the denial of bail/bond in order to safeguard the integrity of the trial and protect the witnesses. 5. In his Replying Affidavit that was sworn on 14th May 2026, the Accused person deponed that the Prosecution’s assertions that he was a flight risk or likely to interfere with witnesses were speculative and unsupported by evidence. He asserted that he was a resident of Kihato Village within Laikipia County, where he had lived openly for a long period, and that he had a fixed place of abode, strong family ties, and economic connections within the jurisdiction of the Court. He stated that he was married with three (3) young children and was also responsible for the care and maintenance of his elderly mother, who depended on him for support. 6. He further asserted that he was employed by the County Government of Laikipia as a casual labourer and that his residence, employment and family responsibilities demonstrated his deep roots within the jurisdiction and reduced any likelihood of absconding. He undertook to attend court whenever required, comply with any bail or bond terms imposed by the court, and fully participate in the trial process. 7. He denied any intention of interfering with Prosecution’s witnesses and contended that no evidence had been presented showing that he had threatened, contacted, or attempted to influence any witness after his arrest. He maintained that the mere fact that some witnesses were his neighbours or known to him did not, without more, constitute a compelling reason to deny him bail/bond. He further submitted that he was entitled to the presumption of innocence and that continued detention before conviction would unjustly deprive him of his liberty. 8. He further stated that he suffered from ulcers requiring a special diet, regular treatment and medical reviews, and that his continued detention was likely to adversely affect his health. He confirmed that his family members were willing to stand surety for him and undertook to abide by all conditions that the court would impose upon his release on bail/bond. 9. The Pre- Bail Report was dated 2nd July 2027. The Prosecution's Written Submissions were dated 20th May 2026 and filed on the same date while those of the Accused person were dated 27th 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 the Affidavit Opposing Bail/Bond in its Written Submissions. It relied on Article 49(1)(h) of the Constitution, and Paragraph 4.26 of the Bail and Bond Policy Guidelines. 2. 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. 3. 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. 4. 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. 5. It submitted that the Accused person had been supplied with the committal bundle and was aware of the weight and strength of the case against him. It argued that the seriousness of the punishment was enough incentive for an accused person to abscond. 6. The Accused person asserted that the burden rested upon the Prosecution to establish compelling reasons to deny an accused person bail/bond and that the seriousness of the charge alone could not justify continued detention. 7. He further stated that he had no criminal antecedents and that the fact that he was the sole breadwinner of his family and supported his elderly mother demonstrated his strong social and economic ties within the jurisdiction and his willingness to attend court whenever required. 8. He submitted that the allegation of interference with witnesses was speculative and unsupported by evidence. He argued that the mere fact that witnesses were his neighbours did not establish a likelihood of interference. He added that the Prosecution had not demonstrated that he had threatened, contacted, intimidated or influenced any witness. 9. He further submitted that the concerns regarding his safety and public order could not constitute compelling reasons to deny him bail. He argued that the Pre-Bail Report merely disclosed tension within the community and threats of possible retaliation against him. He averred that such concerns could adequately be addressed through appropriate bail conditions, including restricting his place of residence, prohibiting contact with the Prosecution’s witnesses and requiring regular reporting to authorities. 10. He submitted that although the charge of murder was serious and carried severe punishment, seriousness of the offence alone could not amount to a compelling reason for denial of bail. He argued that Article 49(1)(h) of the Constitution did not exclude persons charged with murder from the right to bail and that he remained presumed innocent under Article 50(2)(a) of the Constitution until proven guilty. 11. He placed reliance on several cases amongst them the case of **Republic vs Danson Mgunya & Another [2010] eKLR** where it was held that the seriousness of the charge was in itself not a compelling reason to deny an accused person bail and the case of **Republic vs Muthoni & 4 Others [2026] KEHC 269 (KLR)** where the court reaffirmed that every offence in Kenya, including capital offences, was bailable. He urged the court to consider the circumstances of the case and admit him to bail on reasonable terms. 12. According to the Pre-Bail Report by Diana Wanjiku , Probation Officer, Nanyuki, the Accused person and his family members had a close-knit relationship. His family described him as a law-abiding who had never been in conflict with the law. It averred that it was committed to ensuring that the Accused person complied with the court’s directives during the course of the proceedings. It was, however, reluctant to surrender its piece of land to be used as security. The Accused person’s sister had promised to scout for another alternative surety 13. The Accused person was said not to have drug or substance abuse, understood the severity of the charge that he was facing and that his responsibilities once he was released on bond. 14. On the other hand, the secondary victims and community were said to be fearful of the Accused person. Some community members had vowed to retaliate if he was released. The Probation Office was apprehensive of his security if he was released and his interference with witnesses who were his neighbours. In view of the high tension on the ground, the Probation Office recommended that the granting of bail/bond to the Accused person be deferred to a later date. 15. 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 denial of 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. Having said so, this court noted that the tension was still high in the community was very high with high chances of the Accused person being attacked. It was also evident that his family was reluctant to stand surety for him. The family had not got alternative security to enable the Accused person be released on bond. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Accused person’s application for bail/bond was not merited and the same be and is hereby deferred to a later date. 2. It is so ordered. **DATED** and **DELIVERED** at **NANYUKI** this **31st** day of **July** 2026 **J. KAMAU** **JUDGE**