https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11925

Republic v Wangai (Criminal Case E011 of 2026) [2026] KEHC 11925 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11925 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Case E011 of 2026 DKN Magare, J July 23, 2026 Between Republic Prosecutor and Gilbert Macharia Wangai Accused Ruling 1.This is a ruling on bond application. The accused person is facing charges on the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information are that the accused person, on 13.04.2026 at Jua Kali area, Gakanga Sub-location, Endarasha location, Kieni Sub-county of Nyeri County, murdered Solomon Mureithi. 2.The accused submitted that to the best of his knowledge, there were no compelling reasons why he should not be released on bond and/or bail. He submitted through his advocate that he is not a flight risk. He prayed for reasonable bond terms. 3.According to the probation officer’s bail report dated 23.07.2026, the accused was not a flight risk. He is a person of fixed abode. 4.The application was not opposed by prosecution, who indicated that the incident occurred in a bar brawl. Not a single compelling reason was advanced. Analysis 5.The sole issue for determination is whether there are compelling reasons to deny the accused person bond and, if none are established, the terms upon which bond should be granted. It bears repeating that the constitutional test is a negative one. The court does not begin by asking whether the accused deserves to be released. Rather, it asks whether the prosecution has demonstrated compelling reasons sufficient to displace the constitutional presumption in favour of liberty. Unless such reasons are established, the accused is entitled to release on reasonable bond or bail terms. In Republic V William Kipkorir Kipchirchir & Another [2018] eKLR Mutuku, J. held as doth:Under Article 49(1) (h) an arrested person has the right to be released on bond or bail, on reasonable conditions pending charge or trial, unless there are compelling reasons not to be released. It is clear from the wording of this Article that the right to bail is not an absolute right. Where compelling reasons are advanced and the court is persuaded by those reasons, the right to bail is curtailed. …. In my view the likelihood that an accused person may abscond because of the seriousness of the offence and strong evidence against him is a compelling reason when there is evidence to proof (sic) that the accused has attempted to flee the jurisdiction of the court or has been in hiding. Likewise, intimidation, interference and threatening of witnesses are serious matters and are compelling reasons where evidence of such intimidation, interference or threats is provided to the trial court. I have carefully considered the evidence placed before me to support the allegations that the accused persons may interfere, intimidate and threaten witnesses and in my view and in the absence of the evidence to support the same, these are just suspicions and fears harbored by the prosecution that this may be the case.” 6.The purpose of bail is to ensure the attendance of the accused at his trial and not to seek to evade justice. This court is obliged to consider and grant an amount of bail that will vary according to the circumstances and the nature of the offence, the possible punishment and the circumstances surrounding the particular accused. This then individualizes the circumstances for each accused, while maintaining a broad spectrum of compelling reasons for all accused persons. Article 49(1)(h) of the Constitution of the constitution, provides as follows”(1)An arrested person has the right-(h)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.The question of bond was also addressed in a persuasive Tanzanian case of Panju v Republic [1973] E.A. 282 at page 283 where the court expressed itself as follows:It is clear that the magistrate could not accept that the allegation that the accused was to interfere with witnesses had any substance at all. The magistrate was right in discounting such allegations which are now becoming stock allegations against accused persons, as such allegations need to be substantiated by affidavits as it has often been held by the courts….. If the courts are simply to act on allegations, fear or suspicions, then the sky is the limit and one can envisage no occasion when bail will be granted whenever such allegations are made. 8.The provisions for bond therefore create a negative duty on the state. Unless they raise compelling reasons, an accused is entitled to bond. The objective of bail remains and it should be no more than will probably secure the attendance of the accused, and should never be so large as to amount to a denial of bail. Each case should be treated on its peculiar circumstances. The possible sentence goes only to the amount and not the question whether the accused will be tempted to flee. It has been shown that a scoundrel charged with stealing or even assault can run away while a murder suspect attends court until conviction. In the case of Republic v Fredrick Ole Leliman & 4 others [2016] KEHC 992 (KLR), Lesiit J, as then she was, posited as follows in regard to the dilemma that is bond:71.As I have stated, no rights are of more importance than the other, except that when it comes to the issues of public interest, such issues should weigh more. The standard of proof is not scientific it is on a balance of probabilities.72.I associate with my brother and sister judges’ sentiments in cases cited. In regard to public interest and the compromise of the criminal justice system through various forms of interferences with the case, all that the law requires is that there is interference in the sense of influencing or compromising or inducing or terrifying or doing such other acts to a witness with the aim that the witness will not give evidence, or will give particular evidence or in a particular manner. Interference with Witnesses covers a wide range; it can be immediately on commission of the offence, during investigations, at inception of the criminal charge in court or during the trial; and can be committed by any person including the accused, witnesses or other persons.73.In this case, the drama was when the matter was presented before Kimaru, J. and the fact at the very start of investigations into this case it was clear to the judge the risks potential witnesses in this case faced, behooving upon that judge to give certain directions in their regard are all very telling. Given the facts presented before this court when considering this application, that the 1st and 2nd deceased were actually leaving court after the hearing of the case involving the 2nd deceased herein and the 1st accused, it would appear that the attack on the deceased was intended to interfere with the trial before that court.74.Evidence that an accused person is likely to commit a serious offence if released on bail is a good ground to deny bail. In this case, there is glaring proof, by the very reason why this case is in existence that the likelihood of interference is not a myth, or like Mr. Ombetta wondered, a fertile imagination on the part of the prosecution. It is real. It is a reality. 9.The Accused person enjoys the right to be presumed innocent. Put in another way, if the presumption of innocence is to have any meaning at all then at this stage, an accused person should not be deprived of his liberty save in exceptional circumstances as decreed by the constitution. Being granted or denied bail does not determine the case one way or another, in Republic v Fredrick Ole Leliman & 4 others [supra] , the court continued as follows:80.Finally on the questions of the right to be presumed innocent until proved guilty, the mere fact that an accused is denied bail does not mean that he stands convicted. Such an accused is nevertheless still presumed to be innocent and the object of keeping him in custody prior to trial is not on the theory that he is guilty and not just on the necessity of having him available for trial but more importantly on the greater need to preserve the integrity of the prosecution evidence, the safety of the witnesses, victims and other interested persons whose lives may be in jeopardy including that of the accused. 10.The burden of proving a compelling reason was on the prosecution and not the accused person. The Court of Appeal in Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR), [WARSAME, MUSINGA & ODEK, JJ.A.)], while setting aside the ruling denying bail in a murder trial stated in detail as follows:23.We have carefully considered the record of appeal, the submissions by counsel and the various authorities cited. Article 49(1) (h) of the Constitution states 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”.It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person. We wish to adopt the definition of what amounts to compelling reasons as defined by the High Court in R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 as follows:“….. The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.”24.According to the recently launched publication, Crimianl Procedure Bench Book at pages 48 – 51 paragraph 105, compelling reasons may include the likelihood that the accused will fail to attend court; commit or abet the commission of, a serious offence; endanger the safety of victims, individuals or the public; interfere with witnesses or evidence; endanger national security or public safety; and where it is necessary for the protection of the accused.25.Further, section 123 A(1) of the Criminal Procedure Code which is to be read with section 123 thereof provides as follows:“ 123A(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the court shall have regard to all the relevant circumstances and in particular -(a)the nature and seriousness of the offence ;(b)the character, antecedents, associations and community ties of the accused person;(c)the defendant’s record in respect of the fulfillment of obligations under previous grants of bail; and;(d)the strength of the evidence of having committed the offence.” Subsection (2) thereof stipulates that a person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person –“(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection.”26.This Court has had occasion to pronounce itself on all these constitutional and statutory principles regarding bail in Republic v Nuseiba Mohammed Haji Osman [2018] eKLR where the Court stated, inter alia:“Denial of a constitutional right is not a matter to be treated lightly and therefore any claims made against an accused person aimed at curtailing the constitutional right to liberty must not be made on speculation or conjecture.”27.Turning to the impugned ruling, the learned judge found that there were compelling reasons for denying bail to the appellants. She stated the reasons as being that they may “send fear, anxiety to potential witnesses and therefore lead to intimidation of which may adversely affect the case”. The learned judge further stated that the appellant’s were flight risk and were likely to disturb public peace, order and security. In making those findings the learned judge relied, inter alia, on the affidavit of Inspector Clement Mwangi, the investigating officer and the victims’ affidavits.28.It is trite law that the prosecution bears the burden of proving to the required standard that in any case an accused person ought not to be admitted to bail pending hearing of a criminal case. We must therefore consider whether the respondent discharged that burden in the matter that was before the learned judge. 11.The sentence that may ultimately be imposed upon conviction is not, of itself, a relevant consideration in determining whether an accused person should be released on bond. The inquiry remains whether the prosecution has established compelling reasons to justify a limitation of the accused's constitutional right to liberty pending trial. Although the offence of murder attracts the death penalty under section 204 of the Penal Code, that sentence is no longer mandatory. 12.In the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR), the Supreme Court [DK Maraga, CJ & P, PM Mwilu, DCJ & VP, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ,declared the mandatory nature of the death sentence for murder unconstitutional. The court held as follows:66.It is not in dispute that article 26(3) of the Constitution permits the deprivation of life within the confines of the law. We are unconvinced that the wording of that article permits the mandatory death sentence. The pronouncement of a death sentence upon conviction is therefore permissible only if there has been a fair trial, which is a non-derogable right. A fair hearing as enshrined in article 50(1) of the Constitution must be read to mean a hearing of both sides. A murder convict whose mitigation circumstances cannot be taken into account due to the mandatory nature of the death sentence cannot be said to have been accorded a fair hearing.67.It is to be noted that the mandatory nature of the death sentence provided for under section 204 of the Penal Code long predates any international agreements for the protection of Human Rights. Notably too, as contended by counsel for the petitioners, the respondents and the five amici curiae, it is indeed a colonial relic that has no place in Kenya today. Whereas it is the duty of Parliament to make laws, it is the duty of this court to evaluate, without fear or favour, whether the laws passed by Parliament contravene the Constitution.68.Once again we agree and affirm the statement by the Court of Appeal in Mutiso at paragraph 14 that: As will be seen shortly, and indeed it is axiomatic, human society is constantly evolving and therefore the law, which all civilized societies must live under, must evolve in tandem. A law that is caught up in a time warp would soon find itself irrelevant and would be swept into the dustbins of history. (Emphasis is ours).69.Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment. 13.Consequently, the possibility that an accused person may, upon conviction, if at all, receive a severe sentence does not, without more, constitute a compelling reason for the denial of bond. While the severity of the sentence may be a relevant factor in assessing the likelihood of an accused absconding, it cannot, standing alone, justify the denial of bond. It must be considered alongside all the other circumstances of the case to determine whether compelling reasons have been established. 14.Murder had thus blunted its initial compulsory and tempting sting. In the circumstances the severity of the sentence may or may not cause a person to abscond if released on bail. However, this has to be established as a compelling reason for this particular applicant. The offence of murder is bailable. The discretion to grant bail/bond is that of the court. However, discretion must be exercised judiciously and not capriciously or arbitrarily. In the case of Muringa Company Limited v Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR), the court of appeal, OUKO, (P), as he then was, noted that:Though wide and unfettered the discretion must be exercised judiciously and upon reason rather than arbitrarily, capriciously, on whim, or sentiment. (See. Julius Kamau Kithaka v. Waruguru Kithaka Nyaga & 2 Others, CA. No. 14 of 2013). 15.The court is alive to the fact that in modern society, the incidence of crime has increased and the accused persons brought to court are so many that every criminal case brought before the court takes quite some time even before the actual trial commences. This calls for succinct parameters within the constitutional dispensation for the court to apply and ensure the presence of the accused person at some future date in one or two ways, by placing him in custody or by releasing him on bail or bond as the case may be. 16.Applying the above principles to the facts to this particular accused person, and in the absence of a compelling reason by the prosecution that even conceded to bail, in the absence of evidence that the Accused person resisted being arrested or is noncommittal or on the run, this speaks well of the conduct of the Accused person. 17.The amount of bail or bond is at the discretion of the court. It is always at the discretion of the court. It is incumbent upon the court to weigh the available evidence for and against the grant of bail. This court has to exercise discretion in accordance with the law. As articulated by Sir Newham Worley P. in the case of Ramanlal T. Bhatt Vs. R.(1957) E.A. 332:“... the court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 18.The Accused person has proved a case to enjoy his constitutional right to be released on reasonable bail terms unless there be compelling reasons to negate such bail or bond but which the court has counterbalanced with the assurance to the victims of the alleged offence of murder herein that he will be available throughout trial. The Accused person has justified his basic assurance to be available during trial. The Application for bail/bond is therefore merited. It is accordingly allowed. ORDERS 19.In the upshot, I make the following orders:a.The application for bail is merited and is allowed.b.The applicant is released on bond of Kshs. 300,000/= with one surety of the same amount.c.Directions on hearing to be issued shortly. DELIVERED, DATED AND SIGNED AT NYERI THIS 23RD DAY OF JULY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX.Ruling delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of:-Mr. Kihara for the StateMr. Ndiang’ui for the Accused personAccused presentCourt Assistant – Timothy