https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9147

Republic v Sparta & 3 others (Criminal Case E046 of 2023) [2026] KEHC 9147 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9147 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Case E046 of 2023 MW Muigai, J June 18, 2026 Between Republic Prosecution and Alias Sparta 1st Accused Alias Karach 2nd Accused Joel Njuguna 3rd Accused Eluid Kaige Mwangi 4th Accused Ruling 1.The accused were charged with the offence of murder 2.Particulars of the offence are that :- On the 19th Day of June 2023 at around 0230 hrs within Mowlem Tononoka area in Embakasi West subcounty within Nairobi with others not before court jointly murdered DON MUNYUNDO alias MATO alias UNCLE. 3.The accused persons were arraigned before court on 17/8/2027 when they pleaded not guilty. The accused were heard in their applications for bail which was dismissed as per the Ruling delivered on by Honourable L.N Mutende . 4.The accused have filed further applications for bond review. The 1St Accused Application 5.The first accused filed his notice of motion and supporting affidavit supporting affidavit sworn on 9/5/2025 .The application is brought on grounds that:- 6.The court denied him bail on grounds that he is a flight risk. However , he does not have a passport. That the statements recorded by the investigating officer alluded to him being part of a gang, this is contrary to the Probation report which recommended his release on bail . 7.That he resides with his sister at Umoja and she is willing and ready to be a contact person in the matter. That his sister has always attended court in this matter. 8.That he has been in custody since 24/6/2023 and the mother of his child left their home with his daughter. He has not seen his daughter for 2 years . His mother has also been sick and she cannot afford basic health care. That he has received calls from the prison welfare which have made him agonize as he cannot assist her while is in custody. That the Pre-bail report gave details on his family and work engagement also recommended bail and bond in his favour.He prays that the Court considers the report. The 2nd Accused Application 9.The 2nd accused application and affidavit is dated 2/5/2025.The accused application prays for review of the Court Ruling and to be admitted on reasonable bond terms. 10.The 2nd accused grounds for bond review are that he has a fixed place of abode at Umoja 3 area and that he is a father of a 3 year old and also supports his single mother .That he relied on menial jobs in Umoja area to sustain his family at the time of arrest and shows strong community and family ties.That he presented himself at Kinyago police station and showed full cooperation and willingness to attend trial .That he undertakes to faithfully attend court as required and to abide by any conditions this honorable court may impose . 11.That the application raises substantial constitutional and personal liberty concerns under Article 49 (1) (h) for the court’s urgent consideration. 12.He depones that he has a fixed abode and that he is not a flight risk . That many people know him in Umoja 3 area and he also worked in construction sites. The 3Rd Accused Application 13.The 3rd accused person filed Notice of Motions dated.7/4/2025 and 24/1/2026 and his supporting affidavits. 14.The 3rd accused prays for revision of the orders of Honourable L. Mutende delivered on 6/ 8/2024 15.That the court admits him to reasonable bond terms and such terms that are fit considering the applicant’s heath conditions continues to deteriorate while in custody. That prison has been unable to afford him necessary health care required for his wellbeing and to proceed with the trial. 16.The application is brought on grounds that the court found that he is a flight risk. However, he does not have a passport and that this can be verified. That the Pre-bail report recommended his release on stipulated terms. That the accused resided in Umoja with his mother and she is ready and willing to be his contact person. 17.That the he has been in custody since 24/6/2023 and his wife and child have not contacted with him .He was the breadwinner and also provided for his sick mother. The family members cannot cater for his mother’s growing health needs. 18.That there are no reports of witness threats by accused and his family and he promises to abide by bail terms issued by this court 19.Further that the accused has been has been having severe health conditions while in custody and has not managed to get proper medication .He has been in and out of different medical facilities . 20.He depones that he is not aware of the whereabouts of his child and he continues to suffer. That his family members are unable to cater for his mother’s health needs. The accused also attached medical reports marked JNN1-3 with details on his health condition. The 4Th Accused Application. 21.The 4th accused filed the application dated 9/7/2025 and his supporting affidavit. 22.The accused prays for review of the courts bail and bond terms and that the court grants him reasonable bail of Ksh 500,000/= and or bond of similar amount. 23.The 4th accused grounds for release on bond are that he is in dire need of medical attention which cannot be provided in the remand facilities. That he had an accident before arrest.That his left leg required a metal plate and dressing and special medical attention. That he complains of constant and extreme pain due to conditions in prison and particularly during the cold season in the month of July. 24.That he has a fixed abode and his mother is willing to stay with him. She also confirmed that she is willing to make sure that he avails himself in court whenever required. 25.That the accused is well known in the community where he has a good record and ties as indicated in the Prebail report. The 4th accused further urges that he is not part of any gang and that he did not participate in killing of deceased and that this is also evident in the witness statement of the deceased’s sister. The accused further relies on the presumption of innocence on his prayer for bond review 26.The 4th accused attached medical records from St Peter’s Orthopedic Surgical Specialty Center. 27.The application was canvassed vide submissions . Written Submissions . The Prosecution’s Submissions 28.The prosecution filed written submissions and also addressed court on the application. The application is opposed, the prosecution submits that the affidavit of CPL Abdi Ali was filed in the first application and that the court dismissed the application finding that the accused would not be released due to witness safety and preservation of the evidence. 29.That the witnesses are still vulnerable and are yet to testify .That releasing the accused will jeopardize preservation of their testimony. 30.That witnesses are ready to come to court but delay in the trial is caused by the accused persons applications. 31.That there is no change of circumstances and the affidavit of CPL Abdi Ali outlines strong convincing reasons warranting denial of the accused right to bail. 32.The prosecution oppose the 1st accused application on ground that the charges are of serious nature of the charges .That there is irrefutable evidence of the 1st accused participation which was captured on CCTV cameras and the area was well lit with bulbs and flood lights .That the deceased sister and his wife also pointed out the 1st accused while the deceased mother had to relocate after the deceased had told her that his friends identified ad the 1st -4th accused wanted him dead. 33.That the information on the 1st accused fixed abode and employment is not verified .The allegations are self serving and unsubstantiated . 34.That there is real and substantial apprehension of witness interference. That the accused demonstrated violence and organized action by leading a group of 8-10 men in a fatal attack. His release would create fear and intimidating and affect witnesses. Tenants also witnessed the offence from the balconies and they may fear for their safety . 35.Lastly that the heinous nature and the crime being committed in view of witnesses also caused anxiety and a sense of insecurity within Mowlem and Tononoka communities .That the accused is the alleged ring leader and his release at this stage would be detrimental to public confluence in the criminal justice system . That presenting himself to the police station is mere compliance with the law and is not a demonstration of good faith . 36.The 2nd ,3rd and 4th accused applications are also opposed. The prosecution reiterate that accused were directly implicated by the deceased wife and sister. The witness testimony is key in securing conviction and this gives the accused more motivation for self-preservation . 37.That the accused are flight risks and are also part of a gang networks and resources. That there is risk of the accused absconding and also going underground within the country. The prosecution contends that the accused accomplices being at large , gang affiliation and serious nature of charges point a likelihood that the accused will not surrender for trial . 38.Further that the accused were in possession of firearms which have not been recovered .The accused are likely to regroup access the fire arm and threaten the witnesses. 39.The accused have been custody since 2023 and that there is no material change of circumstances considering the period of time and the nature of charges and complexity of the case .The reasons for the accused detention is still unchanged. 40.That the 3rd accused has not presented medical reports to demonstrate that the nature and extent of his medical condition cannot be managed within prisons and by referrals to public hospitals .The prosecution relies on the case of Mwangi -Vs- Republic (2023) eklr 41.Further that the accused family situation was within their knowledge during the first application for bond and there is no change in the accused familial responsibilities .The prosecution refers to the case of Dominic Karanja –Vs- Republic where the court held that family responsibility is not ana exceptional reason for release on bond 42.The allegations that the accused have a fixed abode were investigated at the time of the initial application . 43.Lastly that the 4th accused claims that he is assisting the deceased is a matter for trial. THE 1ST ACCUSED WRITTEN SUBMISSIONS 44.The accused filed submissions on 8/2/2026 and submits that he has ongoing employment at Unilever Kenya and that he was arrested on his way to work . That he cannot flee the country and that he has demonstrated that he is more than willing to comply with bail conditions and to report to a police station at designated times .That he and the 2nd accused presented themselves to the police station to aid in investigations and to clear their names . 45.That the accused was denied bond for the sole reason that he does not have family ties and a fixed abode . The probation report indicates that he is the sole caregiver .That his biological sister were presented before court and the prosecution was allowed to interrogate her . The prosecution has not proved exceptional and compelling grounds and denial of his right to bail is not justified by law or fact. The accused relies on the case Republic v Sifuna [2023] KEHC 22379 (KLR) THE 2ND ACCUSED SUBMISSIONS 46.The 2nd accused/applicant submits that the prosecution relied on generalized allegations in opposing the initial application .That the prosecution claimed that he was a flight risk and also referred to unverified gang association and potential witness interference . 47.That the accused has been in custody for 3 years and the presumption of innocence , delay in the trial and severe economic and emotional toil suffered by his young family and parents during the prolonged period of incarceration constitute material change of circumstances in his case . The accused refers court to the case of Republic -Vs- Francis Maina Wairimu (2020) eklr and the case of Republic -Vs- Diana Suleiman Said 48.Further that prolonged pretrial detention for 3 years is an encroachment on the right to fair trial and resembles pretrial punishment. That favorable recommendation were filed by the investigating officer in support of his release on bail. 49.On whether the accused is a flight risk, it is submitted that the 2nd accused willingly and voluntarily presented himself at police station before formal arrest and that this demonstrates unequivocal intention to submit to the judicial process 50.That he does not have passport or travel documents to facilitate absconding from the jurisdiction of the court .He is also a provider and has strong familial ties naturally anchor him to the community and within the reach of the court. 51.The prosecution has not adduced reliable or cogent evidence to demonstrate the 2nd accused has attempted or threatened or has capacity to interfere with any prosecution witnesses .These allegations have not crystalized into evidence over the three years .The accused refers to the case of Republic –Vs- Susan Wangari Gutrahi (2011) eklr THE 3RD ACCUSED WRITTEN SUBMISSIONS . 52.The accused submits that he took plea 3 years ago and that no single witness has appeared before court to testify .That he has always willing and ready to defend his case and prays that the court considers the change of circumstances caused by significant delay in the trial which has caused prolonged incarceration. The accused relies on the case of Republic -Vs- Irungu alias Jowie … 53.Further that his health has deteriorated during prolonged incarceration which is a risk to his life . THE 4TH ACCUSED WRITTEN SUBMISSIONS 54.The 4th accused /applicant submits that he as a fixed abode and that he hails from Gilgil in Nakuru County. That he does not have a passport and that there is no chance that he will leave the country .He is a sole breadwinner and his wife is a house wife. 55.That he has no record of absconding and there is no likelihood of interference as indicated in the prebail report filed on 1/3/2023. 56.That he has been in custody for 3 years with no medical care .His condition continues to worsen and he requires immediate medical attention. That his mother is willing to accommodate him at her house at Kariobangi South and will also be the contact person on his behalf. 57.That his family is not able to raise bail and he prays for free bond. Analysis 58.I have considered the grounds of the accused applications and the submission filed by parties. 59.The court delivered the ruling dated 16/8/2023 when the accused initial applications for bond were denied. A prebail reports were filed on 5/3/2024 and the replying affidavit of No 5247 Cpl Abdi Ali of Dandora DCI dated 25/7/2023 which is also on record. 60.The investigating officer noted that ,”witness are known to accused and suspects who are robbers and is apprehensive that the accused can try all ways possible to subvert justice jeopardize the case .” 61.The court ruled that : “For Safety of witness victims and preservation of evidence it is advisable not to release the accused on bond. For that reason I find the state having put forth cogent reasons requiring the accused incarceration during the pendency of the case.” 62.The court also noted that the 1st and 2nd accused presented themselves to the police five 5 days after the incident and when they were captured in CCTV footage. That all the accused persons were members of gang or had association with the gang which was still at large. That the gang was in possession of pistols, witnesses may be threatened. 63.The compelling reasons to deny the accused bond were listed as , witness threat and interference, public security and regrouping with the accomplices who were at large. 64.The threshold for bond review was outlined in the case of Republic –Vs- Diana Suleiman Said and another [2014] KEHC 3724 (KLR), where the court considered application renewal of bond terms with the following finding :-“ 65.The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances changed in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.” 66.The burden is on the applicant /accused in this case to demonstrate that the compelling grounds ceased to exist or can be mitigated. 67.See Republic -Vs- Musa & 4 others [2025] KEHC 15269 (KLR) where the High court held at paragraph 12 that “…For an applicant to succeed in this application, he has to demonstrate that since the court rejected his application for bail, the compelling reasons that informed the denial of his application have changed. If the reasons that led to the denial still subsist, then his application for review must fail. “ 68.Further, the bond review is not an appeal against the Court’s ruling. The Court is not sitting to impugn its earlier ruling and is guided by whether new developments or serious or urgent circumstances have emerged or change in earlier circumstances that made this Court decline bail/bond as outlined in Paragraph 14-19 of Ruling of 6/8/2024. 69.In R vs. Nottingham Justices Ex parte Davies [1981] QB 38 cited by the High court in Waititu Babayao -Vs- Republic (Anti-Corruption and Economic Crimes Appeal E006 of 2025) [2026] KEHC 1640 (KLR) , the Court held that:“The court considering afresh the question of bail is both entitled and bound to take account not only of a change in circumstances which has occurred since the last occasion, but also circumstances which, although they then existed, were not brought to the attention of the court. To do so is not to impugn the previous decision of the court and is necessary in justice to the accused. The question is a little wider that ‘Has there been a change?’ It is ‘Are there any new considerations which were not before the court when the accused was last remanded in custody?’ 70.In the case of Republic –Vs- Joseph Kuria Irungu & another [2019] eKLR Wakiaga J also clarified that review is a place for the accused to tell court that it was wrong or unjust in the initial ruling.“All the other issues submitted upon was an attempt to answer the issues the court raised and ruled upon while declining to grant the earlier order, viewed in light of the fact that it is not an appeal against the earlier decision, I do not think that this is an attractive approach as it is a kin to telling the court that you were wrong or unjust at the initial Ruling, which is not the domain of the court at review but that of the Appellate Court. “ Determination of the accused application’s The 1st accused application 71.The 1st Accused grounds for bond review are that , he is not a flight risk and that he is employed at Unilever Kenya . He also indicates that his sister can be interrogated to be his contact person. 72.The Pre-bail report indicated that the accused was working at Unilever Kenya Ltd and that his family depended on him. Also; that he has family members who were ready and willing to stand surety. The Probation officer recommended the 1st accused release on bond . 73.These factors were considered in the Ruling that is now subject to court for review .The court found that the there was possibility of witness interference and threatening and that the accused was now in possession of the statements of each witness and he had become aware of the allegations against him . The court also noted that the probation officer recommended bail but the report was not binding to the court . The accused grounds in the second application are akin to an appeal which cannot be determined by this court . 74.As regard his right to bond review, I find that compelling grounds identified earlier still persist and that witnesses have not testified. Witness interference and threatening is a serious compelling ground that is guarded by the court to prevent obstruction of justice . 75.In Republic -Vs- Joktan Mayende & 3 others Case No. 55 of 2009 where the court held that“- In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice; undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the Preamble to the Constitution of Kenya 2010” 76.Further; Hon Lesiit J (as she then was)in Republic. –Vs- Fredrick Ole Leliman & 4 Others [2016] eKLR, also indicated that witness protection is essential to maintaining the fairness and credibility of the judicial process. That“Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that the accused may interfere with the evidence; or may endanger an individual or individuals or the public at large; the likelihood that the accused may commit other offences. In these instances where such interferences may occur the court has to determine whether the integrity of the criminal process and the evidence may be preserved by attaching stringent terms to the bond or bail term; or whether they may not be guaranteed in which case the court may find that it is necessary to subject the accused to pre-trial detention." The 2nd accused 77.The accused urges that the passage of time, the delay in the trial and prolonged detention and the consequences of his incarceration on his family constitute material change of circumstances. 78.The accused personal circumstances and his family needs were highlighted on the Pre-bail report. The accused personal circumstances and needs of the accused can be considered where the accused or suspects are primary care givers. 79.There is no doubt that the accused family continues to suffer during pretrial period, the accused is also entitled to presumption of innocence such that pretrial detention is meant to be a last resort and where possible, stringent measures may be recommended to facilitate his attendance. 80.However, the established compelling grounds of witness threatening and the accused possibility of regrouping with the criminal gang still exist in the case. I still find that the situation has not altered and that his release at this stage will jeopardize the final determination of this case. 81.This is more particularly considering that the accused accomplices are still at large and that the accused release is likely to interfere with additional processes in criminal justice system on this case. 82.In the case of Republic -Vs- Zacharia Okoth Obado [2018] eKLR Lessit J (as she then was) explained the likelihood of the accused interfering with witnesses and jeopardizing the case where suspects were still at large.“The nature of the case has been changing and more and more additional persons are being brought and charged with the same offence. Interference with the case is not constructively by meddling with the witnesses in a case, it can also be indirect say by releasing some facing the same charge while others are being arrested.” See paragraph 49 of the Ruling. The 3rd accused. 83.The Pre-bail report and the court’s ruling does not indicate that the accused had medical complications. 84.This court gave directions for the accused treatment and for relevant medical reports on the situation of his health. The report dated 27/8/2024 from Silent Hill Hospital is attached to the accused application and indicates that the accused was treated at the hospital on 14/3/2023 (before his arrest) when he was diagnosed with Typhus fever and severe dehydration. The accused was on monthly follow up but he did not continue on follow up after he was incarcerated. 85.The Report dated 14/3/2025 from Nairobi Remand Health Centre indicates that the accused is managing chronic gastritis and that he is on antacids and diet modification. He was scheduled for further treatment at KNH for a gastroenterology clinic on 3/4/2025. The accused was also referred to Mbagathi hospital as per report dated 10/3/2025. 86.I find that the accused was unwell at the time of arrest and that his health has deteriorated subsequently during pretrial detention. Similarly, the accused personal circumstances and health have to be considered with compelling grounds raised in the Ruling. The key consideration is whether the accused will attend court if he is released and whether his release will jeopardize the case. 87.I find that the accused was also tied to association with the gang which is at large, the court also found that witnesses would be threatened in case he is released. These compelling reasons still exist. The accused chances of being a flight risk are also apparent in the case since his accomplices have not been arrested. 88.The reports filed before this court indicate that he is on treatment and follow up and necessary steps should be taken to facilitate his access to the right to health within the prisons .The accused case does not demonstrate that his condition cannot be resolved within the available health resources and such grounds must be specifically proven. 89.In Peter Mwandia Waithaka –Vs- Republic (2019) eKLR , the High Court rejected application for bond on ground of the accused person’s ill health and held as follows:-“As for the applicant’s ailment, there is no evidence that the same cannot be taken care of by the prison medical facilities. Mere allegations that one is sick would not entitle one to bond because most of the prisoners would plead the same excuse.” 90.The accused will continue with treatment and follow up. The 4th accused. 91.The Pre-bail report confirms that the accused suffered a motorbike accident. The accused was on crutches and that he recovered sometime before arrest. The accused feared that his condition may worsen during pretrial detention .He complains of pains during cold seasons and the conditions in the prison facility. 92.The reports from St Peters orthopedic dated 6/5/25 and discharge summaries have also been considered. The accused suffered a fracture of the tibia fibula after a Road Traffic Accident, he was also treated and physio therapy at the hospital. The hospital indicates that the accused requires dressing at nearby facility every 3 days. It can only be done in a medical facility. 93.This ground is also considered with the court’s determination on the accused eligibility for bail. Like the other accused ,the 4th accused release will jeopardize the prosecution case and there is also high chance of regrouping , absconding and frustrating the final determination of the case. 94.I find that his medical condition needs urgent attention and that arrangements can be made within the prison health care. Disposition 95.The Accused persons’ applications for review are disallowed. 96.The Prosecution shall line up key witnesses in the matter and take steps for expeditious hearing of the key crucial witnesses and thereafter bail/bond application to be reconsidered and/or granted. 97.The Prison Health Care Centre at Nairobi Remand and such other facilities shall continue to attend to the 3rd and 4th accused heath needs as the trial proceeds unless urgent matters arise which can be brought to the attention of the court.Further mention on 9/7/2026- by then you will have the Ruling available. DELIVERED SIGNED & DATED IN CRIMINAL DIVISION AT NAIROBI IN OPEN COURT THIS 18/6/2026.M.W. MUIGAIJUDGE high court criminal case e046 of 2023 nhc 0