https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11626

Republic v Were alias Fedo (Criminal Case E038 of 2022) [2026] KEHC 11626 (KLR) (Crim) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 11626 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Case E038 of 2022 AM Muteti, J June 22, 2026 Between Republic Prosecution and Fernard Ouma Were alias Fedo Accused Ruling 1.The accused person was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. 2.The particulars of the offence are that AFEDNARD OUMA WERE alias FEDO on 25th December 2021 at Meta-meta Bar in Huruma, in Starehe Sub-County, within Nairobi County murdered DAVID MAINA alias MAISH alias WANGUGU. 3.The accused person was denied bail by the court for reasons that immediately after the commission of the offense he relocated from the place he was residing thus he was considered to be a flight risk. 4.Additionally, the prosecution feared that if he were to be released on bail, there was every likelihood that he would interfere with prosecution witnesses, 5.The accused has renewed his quest for release on bail arguing that the prosecution had failed to adduce evidence to show that he is indeed a flight risk. 6.The accused further contended that he has strong family ties and prior to his arrest he was a boda boda rider and it is that business that he wishes to go back to. 7.He further argued that he is ready and willing to abide by any conditions the court may impose upon his release on bail. 8.The prosecution opposed the renewed application for bail and urged the court to consider the affidavit sworn by No. 80154 CPL Busienei which according to the prosecution succinctly demonstrates how the accused person had taken cover after the incident to evade arrest. 9.The prosecution also urged the court to consider the stage at which this application is made and take into account the extent of the proceedings in determining whether it would be in the interests of justice to release the accused person on bail. 10.The prosecution contended further that they had made a strong case and only one prosecution witness was left before they close their case. 11.The court has considered the rival submission by counsel and the authority of Michael Juma Oyamo vs Republic Criminal Appeal No. 113 of 2018 cited by the accused person’s counsel in support of his application arguing that the fact that an accused person has been made aware of the evidence against him is not good enough to have him denied bail. 12.The defense urged the court not to be swayed by the evidence so far tendered because the accused person is still considered to be innocent until proven to be guilty. The defense emphasized that there was no evidence that the accused had a history of flight to warrant his denial of bail. 13.The Constitution under Article 49 (1) (h) decrees that an accused person charged with a criminal offense may be released on bail upon reasonable conditions unless there are compelling reasons not to be released on bail. 14.The court in determining whether there are compelling reasons looks at the evidence of such reasons as provided by the prosecution through a sworn affidavit. 15.The prosecution is mainly opposed to the accused persons release on bail on the ground that they consider him a flight risk based on his conduct prior to his arrest. 16.The court had denied him bail on that ground previously and it is thus incumbent upon the accused person to demonstrate that the circumstances have changed in favor of him being released on bail. 17.The defense did not tender any evidence of change of circumstances to warrant this court reviewing bail. An accused person seeking the review of bail must be able to demonstrate change of circumstances regarding his risk profile in order for the court to review its earlier decision declining to grant bail. 18.The accused person did not persuade this court in that regard. 19.Further, a review of a decision declining to grant bail may be done where the accused person demonstrates that there has been delayed prosecution for an unreasonably long and unexplained period by the prosecution. 20.The accused person in this matter did not raise that ground thus the court did not have the benefit of hearing any submissions in that regard. However, the prosecution told the court that they are left with one witness before they consider closing their case. The court cannot ignore that fact in determining whether it would be in the interests of justice to grant the accused bail at this stage. 21.The court is therefore satisfied that there has been considerable progress in this matter and there appears on record to have been problems in getting the matter proceed at some point for reasons that could not be attributed to the prosecution or the court. 22.The court cannot ignore the stage at which the proceedings have reached because that answers the twin question of the strength of evidence so far received and also provides the court an opportunity to weigh whether there has been inordinate delay in the prosecution of the case. 23.The strength of the prosecution’s case is a relevant factor in determining whether or not to grant bail though the primary consideration remains whether or not the accused person would return for his trail once released on bail. 24.In Republic vs Margaret Nyaguthi Kimeu (2013) eKLR the court went ahead and denied the accused person bail pending hearing and determination of the case and stated;“I have considered the application, the nature of the offence and the strength of the evidence on record and the severity of the sentence to be meted out if the applicant is found guilty’’. The strength of the evidence received in a case is thus an important factor to consider because that could heighten the temptation to jump bail on the part of the accused. 25.In the instant case, the court is satisfied that good progress has so far been made in the prosecution of the case and that the accused person has not been able to demonstrate change of circumstances to warrant this court reviewing its earlier position on bail. 26.The court therefore declines to review its earlier ruling declining to grant bail and directs the prosecution to fast-track the matter to avoid delay in the expeditious determination of the matter. 27.The review application is therefore dismissed. 28.The accused shall remain in custody until the matter is heard and determined.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JUNE, 2026.A. M. MUTETIJUDGEIn the presence of:Habiba: Court AssistantMs Njoroge for the stateOnsombi for the AccusedAccused: Present