Republic v Wambugu (Criminal Case 26 of 2019) [2026] KEHC 8463 (KLR) (Crim) (11 June 2026) (Ruling)

Republic v Wambugu (Criminal Case 26 of 2019) [2026] KEHC 8463 (KLR) (Crim) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8463 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Case 26 of 2019 MW Muigai, J June 11, 2026 Between Republic Prosecution and James Wanyiri Wambugu Accused Ruling 1.The Accused Person herein James Wanyiri Wambugu,is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code Cap.63 Laws of Kenya.Particulars of offence being that on 28th April, 2019 at Transami area in Embakasi Sub County within Nairobi County murdered Grace Kagire Gathua. 2.On 30th June 2022 the Accused person filed Notice of Motion seeking the following orders;-1.That the Accused person be released on reduced bond or bail terms pending the hearing and final determination of Nairobi High Court Criminal case Number 26 of 2019.2.That the Court be pleased to meet the ends of justice. Grounds For Orders.1.That the Applicant has been in custody since his arrest on 28/4/2019.2.That the Applicant is not able to raise the cash bail or bond as granted by the Court.3.That the applicant's immediate family is not able to raise the cash bail amount set by the Court.4.That the only fixed asset the family owns is registered in the name of the Applicant’s late father.5.The Applicant will suffer irreparable harm if the orders sought are not granted. 3.On 19TH June 2023 Hon. Lady Justice L. N. Mutende delivered a ruling and stated as follows:“The Court appreciates that the Accused is still in remand and that he is unable to comply with bond terms, however, looking at the strength of evidence adduced so far, the interest of justice would call for stringent terms remaining set. However, considering the fact of the Accused being innocent until proven otherwise, and the likelihood of the case taking long because of capacity, I do review bond terms set from Ksh. 1,000,000/- to 800,000/- with a surety in a like sum. other orders/conditions remain as set. It is so orderedAccused Person's Skeleton Submissions In Response To The Probation Report Dated24/02/2026." 4. Background.1.The Accused has been granted bond of Kshs.800,000/- and admitted to cash bail of Kshs.500,000/-.2.The Accused was not able to meet the bail terms and remains in custody since his arrest on 28th April 2019.3.The Accused respectfully urges Court to consider the applicable constitutional principles and review the previous bail terms and grant him bail on reasonable terms. 5.Issues For Determinationa)Whether the Accused person is entitled to reasonable bail terms under the constitution?b)Whether the objections raised in the probation report by the victim's family constitute compelling reasons to deny reasonable bail to the Accused? The Right To Bail Is A Constitutional Right. 6.The right of bail is granted under article 49(h) of theConstitution of Kenya 2010, which provides 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 not to be released. 7.Further, Article 50 (2) (a) of the Constitution guarantees the presumption of innocence until the contrary is proved 8.The Courts have consistently held that the seriousness of the offence alone is not a compelling reason to deny bail. 9.The burden of proof lies on the prosecution to demonstrate compelling reasons, which must be based on credible and verifiable evidence rather than mere allegations. On the alleged risk of Witness Interference. The Alleged Risk Of Witness Interference 10.The victim's family has expressed apprehension that the Accused may interfere with witnesses. However, these allegations are unsupported by concrete evidence. 11.The claims that Accused contacted the family through emissaries have not been substantiated by any proof placed before this honorable Court. 12.Courts have held that mere allegations or speculations cannot amount to compelling reasons to deny bail. 13.The Accused is ready and willing to comply with any conditions imposed by the Court including:i.Orders not to contact the victim's family or witnessesii.Geographical restrictions, if necessary. 14.Such conditions are sufficient safeguards to prevent any possible interference. The Victim's Family On Opposition Of Bail. 15.The Court acknowledges the pain and grief suffered by the victim's family. Which is understandable in the circumstances. 16.However, the emotional feelings of the victims, though legitimate, cannot override constitutional rights. 17.Bail determination must be guided by legal principles rather than emotional considerations. 18.The purpose of bail is not to determine guilt or innocence but to ensure Accused attends trial.The Allegation That The Accused Is A Flight Risk. 19.The claim that the Accused is likely to abscond isspeculative and unsupported by evidence. The Accused has strong family ties, as demonstrated in the probation report, including a brother who has kept contact with him since the Accused found himself in the current predicament. 21.The said brother has expressed his willingness to vouch for his release and provide a cash bail of Kshs. 1000,000/- and is also willing to accommodate the Accused at his house in Dagoretti if reasonable bail is granted. 22.These family ties significantly reduce any likelihood of absconding. 23.The Accused has also never previously been released on bail and therefore there is no history of breach of bail conditions. The Community Alleged Hostility. 24.The Local Administrator indicated that the community may be hostile because the Accused and the deceased hail from the same community. 25.Community hostility should not be used as a basis to deny bail, as this would unjustly penalize the Accused. 26.Where such concerns exist, Courts have addressed them through appropriate bail conditions including relocation or restriction of movement. 27.Furthermore, the Accused accommodation will be provided by his brother in Dagoretti as stated, therefore he will not have to go live in his ancestral community. Personal Circumstance Of The Accused. 28.The Accused has been in remand since 2019, which is a considerate period of pre-trial detention. 29.The Accused suffers from stomach ulcers and has indicated that despite attempted treatment using pain killers while in custody, the condition persists. 30.The Accused also lost his father while in custody and has been unable to mourn or participate in burial rites. 31.These factors demonstrate that the continued detention has imposed significant hardship on the Accused. Conclusion. 32.The objections raised against the release of the Accused do not amount to compelling reasons as required under the constitution of Kenya. 33.The Accused person remains innocent and is willing to comply with any conditions imposed by the Court. 34.The current bail terms are beyond the reach of the accused person and if they are not reviewed downwards, they may amount to sentencing of the Accused person before the matter is heard and determined. Prayers 32.(a)The Court be pleased to find that no compelling reasons exist to deny reasonable bail.b.The Court be pleased to review and admit the Accused to Bail on reasonable terms, including the proposed cash bail of Kshs. 100,000/- or such terms as the Court may deem fit to meet the ends of justice. Affidavit Of By The Accused Person Filed On 9Th September, 20221.That he was granted cash bail of Ksh.500,000 by the court.2.That he is not able to raise the cash bail amount set by the Court.2.That his immediate family is only able to raise Ksh. 100,000/- to pay for the cash bail.3.That before his arrest he was engaged in gainful employment as an electrician. 4.That he does not own any fixed asset save for the beneficial interest in his late father's estate. 5.That he has savings in his bank account which he is not able to access since he is in prison. SUbmissions By Prosecution On Opposition To Review Of Bond Brief Facts 33.The accused person is herein charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The offence was committed on the 28 of April 2019 at Transami area within Embakasi, the accused stabbed the deceased Grace Kagure Gathua over forty-five times, resulting to her death. Defence Counsel on behalf of the accused person made submissions dated 13th March 2026 seeking this Honourable Court to review and admit the accused on reasonable bond terms. The Prosecution vehemently opposes this application on the following grounds;1.The Right to Bail is not AbsoluteArticle 49 (1) (h) of the Constitution of Kenya 2010 provides 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 not to be released." 34.The prosecution acknowledges the burden of proving compelling reasons rests on the State. However, the standard of proof is not beyond reasonable doubt, but rather than on a balance of probabilities as was stated in Republic v Danson Mgunya & another (2010) eKLR. The accused's right to bail, while constitutionally protected, is not absolute. The Constitution itself provides for limitations where compelling reasons exist which the prosecution will demonstrate on a balance of probabilities that such compelling reasons exist. 35.The prosecution herein will only deal will only dwell on the grounds as enumerated in opposition to the submissions for bond review and argue them collectively as herein below. The Victim's Concerns Constitute Compelling Reasons 36.The Probation Officer's Bail Assessment Report dated 24th February 2026 records concerns from the deceased's family. The victim's family, still traumatized and bitter, fears interference given the accused's 5-kilometer proximity and his prior coercive contact through emissaries, which forced the deceased's sister to change her phone number repeatedly, while also describe him as having a "daring personality" and being a flight risk. 37.While the emotional pain of a victim's family alone cannot automatically deny bail. Kenyan courts have increasingly recognized that genuine and substantiated fear by the victim's family, especially where there is evidence of prior intimidation, constitutes a compelling reason. In R v Dwight Sagaray & 4 others eKLR the Court stated:-“For the prosecution to succeed in persuading the court on this criteria, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect, incriminating communication between the accused and witnesses; close familiar relationship between the accused and witnesses among others." 38.The rights of victims is also expressed in Section 10 of the Victim Protection Act No. 17 of 2014, as follows;10.(1)A victim has a right to: -a.Be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;b.Have their safety and that of their family considered in determining the conditions of bail and release of the offender; andc.Have their property protected. 39.In the present case, the victim's family are key witnesses. The deceased's mother, recorded a statutory declaration detailing the relationship and the events. The family’s far is not speculative, it is based on prior conduct by the accused, including reaching out through emissaries. 40.In Republic v. Fredrick Ole Leliman & 4 others (2016) eKLR the court held that:-“In my view, the above fears are not mere whims on the part of the prosecution. I am persuaded that because of the volatility of the situation heightened to such an extent that this court cannot overlook it. It is not in dispute that all the the ground, the temptation to jump bail is accused persons hail from the same locality as the potential witnesses, and this being the case, the danger of such witnesses being driven into a corner by the presence of the accused persons so soon after the ghastly death of the deceased persons is a real possibility. In addition, the fact that the accused persons are so many is likely to send a cold shiver down the spines of such witnesses and corner them into resigning not to appear in court during the hearing of the case even if the accused persons turn up. In a nutshell there will be no witnesses to testify...." 41.Applying this principle, the victim's family resides only 5km from the accused's ancestral home. If released, the accused would be in close proximity to the very people whose testimony is critical to securing a conviction. This creates a real and imminent risk of intimidation, whether direct or indirect. 42.The accused's submissions argue that the "emotional feelings of the victims, though legitimate, cannot override constitutional rights." The prosecution agrees in principle, but distinguishes the present case, here the family's opposition is not mere emotion, it is grounded in the accused's prior conduct of contacting the family, the documented fear of changing phone numbers, the geographic proximity and the pending homicide investigation. In R v Dwight Sagaray & 4 others eKLR, the court denied bail where there was a real likelihood of the accused interfering with witnesses, even without direct evidence of prior interference.(b) Real likelihood of witness interferenceBeyond the victim's family, there are other witnesses, including neighbors and the caretaker. The accused has already demonstrated a capacity to extreme violence from the 45 stab wounds. The prosecution submits that if released, the accused would have both the motive to avoid conviction and the means through his proximity and knowledge of witnesses' locations, to interfere. As held in Republic v Joktan Mayende & 3 others (2012), interference with witnesses is a“Highly potent ground" for refusing bail. The accused's mere apology or promise is not to interfere is insufficient, especially where the victim's family has already reported threatsc. Flight Risk.The accused has been in custody since 2019, but that does not negate flight risk upon release. The accused's "daring personality" as described by the family, coupled with the severity of the charge, creates a strong incentive to flee. In Ahmad Abolfathi Mohammed [2013] eKLR, Hon Achode J. held that“The probability that an accused may not surrender for trial is a valid consideration. Here, the accused faces a potential life sentence, and his ties to the community are weakened by the fact that the local administrator in Nairobi did not know him and the community in his ancestral home may be hostile”.(d) Community Hostility and safety of the accusedThe Probation Report notes that the local administrator in the accused's ancestral home indicated that the community may be hostile because the accused and the deceased hail from the same community. While the community hostility alone is not always a ground to deny bail, it becomes relevant when it raises concerns about the safety of the accused if released. 43.In Republic v Seronei [2025] KLR the court held:“The security and protection of an accused person is a legitimate factor in determining whether compelling reasons exist. Courts have held that where an accused is likely to be harmed upon release, this may amount to a compelling reason justifying denial of bond." 44.In the present case, the accused's brother has offered accommodation in Dagoretti, but that does not eliminate the risk of him returning to the 5km proximity to the victim's family. Analysis & Determination 45.The Court considered the pleadings and submissions by parties through respective Counsel. The issue for determination is reasonable bond and/or affordable bond terms. 46.Bail is a constitutional right enshrined in Article 49(1)(h) of the Constitution. The test the Court is required to use to deny bail in appropriate cases is similarly stated in Article 49(1)(h): it is only upon the showing of compelling reasons by the Prosecution that the Court will deny bail. Section 123 & 123A of the CPC and Bail & Bond Policy Guidelines of 2015 provide guidance on consideration of bail & bond Application. 47.In Patius Gichobi Njagi & 2 Others V Republic, [2013] eKLR the Court in expounding on the Prosecution’s duty to disclose compelling reasons if opposed to bond pending trial stated as follows:“…. where the State opposes bail on account of any of the often-cited and commonly known fears which it routinely expresses including, but not limited to the likelihood of the accused absconding and failing to attend trial; likelihood of interference with witnesses; the possibility of hostile and even violent reception of the accused by the community upon release, the state must do more. It must step out of the realm of imagination and speculation and provide the court with persuasive argument backed by facts and experiences, and circumstances unique to each individual case that would make the court appreciate the need to deny an applicant bail. As stated in the celebrated case of Jaffer V Republic, 1973 E.A. 39, the court cannot be called upon to speculate.” 48.In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009, the court stated 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……Threats or improper approaches to witnesses, although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give schewed evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is it is a justifiable reason to limit the right to liberty of the accused.The possibility of the accused interfering with witnesses will usually be relevant only where the alleged offence is comparatively serious and there is some other indication such as past record of violence of the accused.Where there is a substantial ground for fearing such interferences this seems to be a very strong reason for refusing bail. It is prudent to note that such allegation should be supported by facts showing reasonable cause for the belief. 49.The Bail & Bond Guidelines 2015 provide for the following legal parameters in compliance with Constitutional threshold on grant of bail & bond unless compelling reasons are advanced by Prosecution. These principles include; decision making process complies with Constitution; Balancing rights of suspects/ accused/ public interest/ victims and interest of justice; Recognize presumption of innocence of the Accused person until proved or not proved guilty from trial and liberty of the Accused person and grant reasonable bail and bond terms. Paragraph 3.1 & Pg 9 of Bail & Bond Guidelines 2015 50.In the instant case; the Court has complied with the Constitutional standards with grant of bail & bond and was granted Ksh 1,000,000/- with 1 surety and an alternative Cash bail of Ksh 500,000/-. By Ruling of 19/6/2023 by Hon. LJ Mutende heard and determined review of bail and bond terms from Ksh 1000,000 to 800,000/- and Cash bail Ksh 500,000/-. 51.Now the Applicant seeks further review of bail and bond on grounds that he is not enjoying good health stomach ulcers but the pleading was not reinforced by the medical records on the treatment and gravity of ill health.Secondly, he has a brother who is ready and willing to provide surety or contact person and has fixed abode. Thirdly, he has been in custody for 6 years todate and the bail and bond is not reasonable or affordable. 52.On the other hand, the Prosecution vehemently objected to grant of bail and bond but the Court granted bail and bond and reviewed the bail and bond terms. This Court considers the Accused as been in custody awaiting trial and explained circumstances that should be taken into account. 53.The Court has considered victim’s sentiments in the Pre-Bail report the Community response and the Court shall balance the rights of both the Accused and the victims and community at large and err on the side of caution, the bond terms shall be reviewed to Ksh 600,000/- with 1 surety and all other terms remain the same. DELIVERED DATED SIGNED IN OPEN COURT IN HIGH COURT CRIMINAL DIVISION IN OPEN COURT ON 11/6/2026 PHYSICALLY/VIRTUALLY.M.W.MUIGAIJUDGE