https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1513

Thiaka v Republic (Criminal Appeal E079 of 2024) [2026] KECA 1513 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1513 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E079 of 2024 WK Korir, L Ndolo & AI Hassan, JJA July 31, 2026 Between Stanley Collins Muthike Thiaka Appellant and Republic Respondent (Appeal from the Ruling of the High Court of Kenya at Nairobi (Kimondo, J.) delivered on 20th May 2024inHCCRC No E082 of 2023) Judgment 1.The appellant, alongside two (2) other accused persons, were arraigned before the High Court at Nairobi, facing the charge of murder, contrary to section 203 as read with section 204 of the Penal Code. The appellant was the 3rd accused person. Plea was taken on 8th December 2023, with the three (3) accused persons pleading ‘not guilty’. An oral application for bail pending trial was made on behalf of the three accused persons and in a ruling delivered on 20th December 2023, Kimondo, J denied all the accused persons bail. 2.The murder trial commenced on 9th May 2024, when two witnesses testified. On the said date the 1st and 3rd accused persons made an application for review of the decision denying them bail. This second plea for bail was denied by a ruling delivered on 20th May 2024. It is this ruling that forms the subject of the appeal now before us. 3.In his memorandum of appeal dated 3rd June 2024, the appellant raises the grounds that; the learned Judge erred in law and fact in finding the appellant unfit for admission to bail on the basis that he was a flight risk, against the weight of the evidence; and that the Judge applied the wrong principles in reaching his decision. 4.In his written submissions dated 20th April 2025, the appellant asserts his right under Article 49(1)(h) of the Constitution, to be released on bail or bond on reasonable conditions, unless there are compelling reasons. The appellant further invokes section 123A (1) of the Criminal Procedure Code, which sets out the factors to be taken into account in making a decision on whether to grant or deny bail or bond. 5.The appellant argues that the prosecution did not proffer compelling reasons to warrant denial of bail against him. He faults the trial court for adjudging him a flight risk based on allegations that he had gone underground after the incident. He relies on the decision in Republic vs Nuseiba Mohammed Haji Osman [2018] eKLR for the proposition that denial of bail is denial of his constitutional right which should not be based on speculation. 6.The respondent opposes the appeal. In submissions dated 5th March 2026, it is urged that the right to admission to bail under Article 49(1)(h) of the Constitution can be limited if compelling reasons are established. In advancing this proposition, the respondent relied on the decision in Ferdinand Ndungu Waititu Babayao vs Republic [2019] eKLR. 7.The respondent maintains that because the appellant had gone underground after the incident, there was a real risk of him absconding court proceedings, in addition to interfering with witnesses. 8.When this Court sits to hear an appeal against dismissal of a bail application, it is in effect conducting a sui generis review, rather than a simple re-examination of the facts. In such an appeal, the appellant must demonstrate that the lower court made an error of law or that there are new exceptional circumstances to justify admission to bail. 9.It is well established that, barring compelling reasons for its denial, bail pending trial is a constitutional right. Compelling reasons for denial of bail in this context, would include; risk of the accused person absconding, interfering with witnesses or committing a new crime. Lack of a fixed residence or danger to the public are also relevant considerations. 10.Before the trial court, the appellant argued that he resided far away from the locus of the alleged crime and prosecution witnesses. He urged that he had no chance of interfering with the witnesses. 11.Relying on the decision in Michael Juma Oyamo vs Republic [2019] eKLR where it was affirmed that the purpose of bail is to ensure attendance at trial, the learned Judge of the High Court determined that the trial had reached a critical stage and given the seriousness of the offence and the conduct of the accused persons prior to arraignment in court, there was a real risk of them absconding. With specific reference to the appellant, he was said to have been at large before arrest. 12.The trial court further noted that although four (4) prosecution witnesses had testified, the minor children of the deceased and the 1st accused person, who are key witnesses, remain vulnerable. 13.In rejecting the plea for bail, the learned Judge relied on the High Court decision in Republic vs Joktan Mayende & 3 Others [2012] eKLR where ‘compelling reasons’ for denial of bail were defined as:“…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 standard set by the Constitution.” 14.With regard to the appellant now before us, the learned trial Judge was convinced that he is a flight risk, on the basis that prior to his arrest, he had gone underground. The appellant did not bother to counter this allegation by giving an account of his movement between the incident and his arrest. 15.After due consideration, we find no error of law on the part of the learned trial Judge nor do we find any new exceptional circumstances to justify release of the appellant. In the circumstances, we find no reason to differ with the findings of the learned Judge on the allegation of flight risk leveled against the appellant. 16.The result is that this appeal fails and is dismissed. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.W. KORIRJUDGE OF APPEAL..................................L.M. NDOLOJUDGE OF APPEAL..................................A.I. HASSANJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR