1.The accused herein, Tabitha Njeri Maina, and Praxides Naliaka Musheshi, face the charge of Murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya. The two accused persons were taken before the Hon. M A Otundo on 24th December, 2021 when it was directed that they be taken for mental assessment. On 7th February, 2022, the two accused persons were arraigned before me for plea taking and after they pleaded not guilty to the charge. The prosecution intimated that it was intending to oppose their release on bail. Accordingly, directions were given to the parties to file their respective affidavits and submissions.
2.On the part of the prosecution reliance was placed on the affidavit sworn by one Johnstone Sanga, one of the Investigating Officers in the matter. According to him, on the 9th December 2021 the Homicide Detectives and/or Team within the Directorate of Criminal Investigations was instructed to take over Homicide investigations from the DCI Athi River. The team was to establish the circumstances in which the deceased Kelvin Kipsang Kimengech died at Great Wall gardens apartment within Athi River sub county, Machakos County on the night of 6th and 7th day of December 2021.
3.Upon receiving the above instructions, they proceeded to the DCI Athi River office and were reliably informed that the deceased Kelvin Kipsang Kimengech was found dead at Great wall gardens in an atrium and the investigations was still being undertaken by DCI officers at Athi River.
4.He averred that the right to bail is not absolute as the Court needs to be satisfied that there are compelling reasons to warrant the denial of bail/bond to the respondents. According to him, the 1st accused alleged that the deceased fell from his house Number G 4222 which is on the third floor and died and that she jointly with others removed the body from the scene in order to conceal evidence. Upon evaluating the evidence, it was deposed, there was sufficient and overwhelming evidence against the accused hence the charge facing them before this Court.
5.It was averred that the said charge of murder can attract a capital punishment if found guilty of the charge.
6.It was further deposed that while in police custody, the first accused declined to have an interview with the investigating team, thus denying them opportunity to known her background information and history and therefore her permanent /fixed place of resident is unknown. It was however averred that the first accused was residing in House Number G 4222, a rental house which was being paid for by the deceased as she had indicated to the court and will not be able to pay for the same house rent. To the deponent, the first accused has no known formal or informal employment and thus has no tangible attachment to any place of work and if in any case she absconds, tracing her will be tedious and expensive.
7.It was averred that the first accused is a holder of Kenyan passport and owing to the fact that she has several relatives outside the country, she might flee away in order to evade the judicial processes hence denying justice to the victim as well as the family members.
8.The deponent averred that he was informed that the first accused is violent in nature and prior to the murder of the deceased, had stabbed the deceased twice in April 2015 who was admitted at Kenyatta Hospital and that the incident was reported at Langata Police Station. Further, in the year 2020, the deceased was again stabbed on the hands by the first accused thus the two incidences clearly point that she is violent in nature and if released on bond may cause harm to the witnesses.
9.It was averred that the investigating officers were still on the ground tracing for the associates who are close confidants and who will face the same charge when arrested and if released on bond will jeopardize the efforts of the investigating team.
10.According to the deponent, the family complained to the investigating team that one of the witnesses has already been threatened and intimidated through phone, a fact that the investigating team has commenced investigating and if ignored will cause severe damages and it will then be too late to salvage the situation.
11.The Court was therefore urged to find that the above-mentioned reasons are compelling for this Court not to release the respondents on bail pending the determination/conclusion of this trial.
12.The family of the victim similarly opposed the release of the accused persons on bond vide an affidavit sworn by Dorothy Jemator Kimengich, a sister to the deceased. She urged the Court, pursuant to the provisions of the Victim Protection Act to factor in the views of the victim/family while dealing with the question of whether to grant bail/bond.
13.According to the deponent, there are several compelling reasons in this case to warrant denial of bail/bond to the accused persons. According to her, it is important for a pre-bail report to be availed to a court dealing with such an issue especially where bond is being opposed as it empowers the court to appreciate factual and actual circumstances of the accused person(s) while at the same time enabling the court to appreciate the views of the victim in accordance with the requirements of the Victim Protection Act.
14.The deponent deposed that the accused persons have been charged with the offense of murder that attracts capital punishment/sentence and that the particulars of the charge are quite clear that the murder was most brutal, inhumane and very painful. Further, that there was a clear desperate attempt to cover up the heinous crime. Based on the aforestated cover-ups that the investigations are still on-going to ensure that there is a full and proper reconstruction of what transpired on that day leading to the murder and the motive thereof. To the deponent, though thorough and extensive investigations have already been conducted and there is a possibility of an accomplice(s) of the accused being arrested and arraigned before this court, releasing the accused persons at this stage will directly compromise the investigations as the accused persons will most definitely interfere with the investigations.
15.According to the deponent, there is need for the court to visit the house that was occupied by both the deceased and the accused person which is being treated as the scene of crime and which will inevitably be interfered with if the accused person is released at this stage.
16.It was deposed that the first accused person is violent in nature and indeed prior to the murder of the deceased, she had stabbed him twice more particularly in March 2015 and in 2020 occasioning him life-threatening injuries. She had also in the past threatened other family members including her brother’s daughter (from a previous relationship) with death. It was averred that the 1st accused is known to be a drunkard, an alcoholic, partakes marijuana and this has always landed her in trouble.
17.According to the deponent, a majority of the witnesses are relatives and friends of the deceased and based on the period and the nature of the relationship the 1st accused had with the deceased, all these witnesses are well known to her in terms of where they live, work and their day to day activities. All these witnesses know her character and are fearful of what she is capable of doing in the event that she is released. This is aggravated by previous threats she had been making to the deceased and some of the relatives.
18.It was further averred that the 1st accused is a flight risk and there is no guarantee that she will attend court upon release. Further, the 1st accused has no stable place of abode and has in fact already indicated to the court that she is unable to meet the rental expense for the house she and the deceased used to live in and thus will move out of the premises to a place not disclosed to the court. In addition, she has no known source of income or any formal or informal employment and thus has no tangible attachment to any place of work or economic activity.
19.It was further revealed that the 1st accused is a holder of a Kenyan passport and has in the past unsuccessfully applied for a VISA to the United States of America where her sister resides. It was deposed that the 1st accused has always indicated her intention to leave the country and now that she is faced with the charge of murder, and having no children and with only her mother in the country, she would thus be more inclined to leave the jurisdiction of the court as she has more to lose if she stays here.
20.Regarding the 2nd accused, it was averred that very little is known about her, but being an accomplice of the 1st accused, if released, she can still be used to achieve the overall objective of interfering with the case.
21.In her further affidavit, the said deponent, while appreciating that a pre-bail report is not a mandatory requirement, averred that its importance cannot be undermined as its purpose is to verify the truthfulness and accuracy of the information provided to the court by accused persons and the victims. It also brings into Court the background and community ties of an accused person and thus gives the Court the benefit of making an informed decision on whether to grant or decline to grant bail or bond and even if it is to grant it, the same guides the Honourable Court on the conditions to be imposed and parameters of the same.
22.It was averred that the 1st accused person is not an in-law and that they have never been to her home, no ceremony done and no dowry has ever been negotiated or paid. She stated that as a matter of fact, they do not know any of the relatives of the 1st accused as they have never met them. It was averred that they first heard about the 1st accused person after she stabbed the deceased and that she acknowledged stabbing the deceased and vide her sister who resides in the United States, she refunded the costs paid to the hospital. It was averred that from the moment the sister to the 1st accused person made the refunds, the 1st accused person has always insisted that the same meant that no one should ever raise the issue of her stabbing the deceased. However, there had never been any such understanding and they felt she needed assistance in a mental institution.
23.It was disclosed that once again and in 2020, the 1st accused person stabbed the deceased and though they tried to speak with the deceased to leave the violent relationship because it was as clear that the 1st accused person was not a mentally stable person, they were unsuccessful.
24.It was disclosed that the 1st accused was charged at the Chief Magistrate’s Court in Kibera under Criminal Case No. 1295 of 2015.
25.According to the deponent, in as much as the 1st accused person has not received the statements in relation to the case, the 1st accused knows the scene of crime, who was at the scene, the persons who were with the accused persons. She also knows the security guards very well. She very well knows the family of the deceased who are witnesses in the matter and whom she has previously threatened. It was further deposed that the 1st accused person in any case will in due course know the nature of evidence and witnesses lined up to testify against her thus cannot rely on her lack of knowledge of the same at this time as a defence to the possible interference and the effect her release will have on prosecution witnesses.
26.The deponent took issue with the fact that Susan Wairimu Macharia, had not attached any document including a birth certificate to demonstrate that she is the mother to the 1st accused / Respondent. Further, the affidavit sworn by Susan Wairimu Macharia does not give the full particulars of the place of abode and in particular, the Land Reference Number and a confirmation if it’s an apartment, the floor, door number and any landmark features that are closer to her place of abode.
27.It was noted that the Court has only been told of the supposed mother’s abode where the 1st accused person intends to reside in the event bail/bond is granted. However, there is no evidence of any permanency of the said un-particularized place. There is no title deed or proof of ownership of the land or house or even any attachment the said mother has in the stated location. These buttresses the critical need for a pre-bail report prior to any decision being made on the issue of bond and / or bail as that is the only way to verify these very important and critical averments by the mother of the 1st accused.
28.It was noted that the accused person had stated that she will stay with her mother in Nakuru County and this is where the mother of the deceased lives. The first accused person knows exactly where the mother of the deceased lives and it would be in fact so stressful and affect not only the mother of the deceased but also the family members as their security will not be guaranteed. It was reiterated that the 1st accused person is still a flight risk and is likely to abscond the jurisdiction of the court considering the proximity of the supposed abode to the jurisdiction of the court. The 1st accused person has no fixed abode and lacks any deep emotional, occupation or economic ties in the country. Furthermore, this does not guarantee that she will not interfere with or communicate with witnesses if she is released.
29.It was averred with respect to the investigations, that there is a possibility of other accomplices of the accused to be arrested and arraigned before this court and that the 1st accused if released will inevitably use her liberty to interfere with investigation in relation to her accomplices who are yet to be charged. Furthermore, the mere fact that she is willing to surrender her passport is no guarantee that she cannot leave the country. Without an attachment to the Country and with the seriousness of the charge facing her and the possible sentence, the Court would surely need more than just words to release her.
30.It was averred that the 1st accused person failed to rebut the compelling reasons put forth by the prosecution and the victim’s family which reasons greatly warrant the denial of grant of bail/bond to the accused persons.
31.To the deponent, Courts when faced with such facts in the past have even when they intend to grant bail or bond have first requested for a pre-bail report and also granted bond only after the key and vulnerable witnesses have testified. It is thus an important consideration which this Court ought to consider when handling this application.
32.It was contended that it is in the interest of justice that the court does deny the accused persons bail/bond.
33.It was submitted on behalf of the family of the victim that the right to bail or bond is not absolute and can be curtailed where there exist compelling reasons. Reliance was placed on Section 123A of the Criminal Procedure Code as setting out the parameters to guide the court in considering an application for bail.
34.It was further submitted that the Bail and Bond Policy Guidelines re-echoes the factors the court should consider to determine whether there exist compelling reasons to deny bail.
35.It was contended that the Constitution under Article 50(9) recognizes the victims of offences and pursuant to the Article, the Victims Protection Act was enacted to give effect to the provisions of Article 50(9) of the Constitution and one of the objectives under Section 3 of the Act is to recognise and give effect to the rights of the victims of crime. Section 4(2)(b) of the said Act, it was submitted, provides that the court shall ensure that every victim is as far as possible given an opportunity to be heard and to respond before any decision affecting him/her is taken. Section 9(2) further provides that the court shall permit the victim’s views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court. Reliance was placed on the decision of the Supreme Court in Petition No. 23 of 2019 - Joseph Lendrix Waswa vs. Republic  eKLR and IP Veronica Gitahi & Another vs. Republic (2016) eKLR.
36.Having established that victims of offences have participatory rights in a trial process, it was submitted that the circumstances of this case warrants denial of bail/bond on account of the compelling reasons. It was submitted that the accused persons have been charged with the offense of murder that attracts capital punishment/sentence. The particulars of the charge are quite clear that the murder was most brutal, inhumane and very painful. Further, that there was a clear desperate attempt to cover up the heinous crime. It was submitted that murder is a seriousness offence and the punishment likely to be meted if the accused persons are ultimately found guilty entails the death penalty. Reliance was placed on the case of Watoro vs. Republic  KLR 220.
37.According to the submissions, the temptation for the accused persons to jump bail and abscond trial considering the gravity of the punishment in relation to the offence is a key factor for the court to consider in whether to admit the accused persons to bail.
38.It was further submitted that thorough and extensive investigations have already been conducted and there is a possibility of an accomplice(s) of the accused being arrested and arraigned before this court. Releasing the accused persons at this stage will directly compromise the investigations as the accused persons if released will use their liberty to interfere with investigation in relation to their accomplices who are yet to be charged.
39.The Victims also cited the decision in the Criminal Case No. 51 of 2018; Republic vs. Joseph Kuria Irungu & Another  eKLR where the Court in denying grant of bail to the 1st accused person on account of him being a flight risk stated that:
40.In this case it was submitted that the 1st Accused Person has no stable place of abode as she indicated that she is unable to meet the rental expenses of the house she resided in with the deceased. She has only recently mentioned that her mother will supposedly accommodate her at her abode in Nakuru. Furthermore, she has always indicated her intention to leave the country and now that she is faced with the charge of murder, and having no children and with only her mother in the country, she would thus be more inclined to leave the jurisdiction of the court as she has more to lose if she stays within the jurisdiction of the court. Accordingly, .the 1st accused person has no fixed abode and lacks any deep emotional, occupation or economic ties in the country.
41.It was contended that majority of the witnesses are relatives and friends of the deceased and based on the period and the nature of the relationship the 1st Accused person had with the deceased, all these witnesses are well known to her in terms of where they live, work and their day to day activities. All these witnesses know her character and are fearful of what she is capable of doing in the event that she is released. This is aggravated by previous threats she had been making to the deceased and some of his relatives.
42.It was submitted that there is a high likelihood that she will be able to contact them and intimidate, inflict fear and anxiety which is prejudicial to the exercise of justice in this case. Interference with witnesses, it was submitted, undermines the criminal justice system and dents the integrity of the criminal process. Reliance was placed on the Criminal Case No. E001 of 2020 - Republic vs. Robert Kipkorir Tonui where the Court, in dealing with the question of interference with witnesses stated that:
43.Reliance was further placed on Republic vs. Joseph Kuria Irungu & another (2019) eKLR where the court in dismissing the application for review of orders granted stated that:
44.It was noted that the court in Republic versus Henry Kirimi Kimbo (2015) eKLR in denying the accused bail on account of the likelihood of interference of witnesses held that:
45.It was submitted that owing to the high likelihood of interference of witnesses in this case, it is in the interest of justice that the accused persons be denied bail/bond.
46.According to the victims, the first accused person is violent in nature and indeed prior to the murder of the deceased had stabbed him twice more particularly in April 2015 and in 2020 occasioning him life-threatening injuries. She has also in the past threatened other family members including the deceased’s daughter (from a previous relationship) with death and is known to be a drunkard, an alcoholic, partakes marijuana and this has always landed her in trouble.
47.It was therefore submitted that the accused persons have failed to rebut the compelling reasons put forth by the prosecution and the victim’s family which reasons greatly warrant the denial of grant of bail/bond to the accused persons.
48.In response to the above, the 1st accused swore an affidavit in which she stated that that bail is a constitutional right and that Article 49(1)(h) of the Constitution is explicit that, unless there is some compelling reason, an accused person, be he a citizen or foreigner, ought to be released on bail, as a matter of right, pending the hearing and determination of his/her case. It was urged that in addressing itself to the issue of bail, the Court shall be guided equally by the Bail and Bond Policy Guidelines. According to the 1st accused, it is apparent from the averments in Ms. Jemator’s affidavit that her in-laws were always opposed to her relationship with the deceased and that they did not find her worthy of their kin and attempted on numerous occasions to end the relationship. Accordingly, the Court was urged to take into account the frosty relationship she had with her in-laws as it addresses itself to their objection.
49.It was averred, based on legal advice, that the involvement and participation of the victim as provided for in the Victims’ Protection Act has been well settled in law and that the parameters within which they may secure audience have been established and that the Victim shall not usurp the role of the Prosecution and / or that of the investigation officer. According to her, the State’s prosecutorial powers are vested in the office of the DPP under Article 157 of the Constitution. In the 1st accused’s view, the allegations as contained in the affidavit of Ms. Jemator are a clear example of usurpation of the Prosecutorial powers.
50.She however averred that the said allegations remain unfounded and uncorroborated. She denied that she has ever been charged and/or convicted of the offences alluded to. She also stated that as at the time of swearing the affidavit she had not received the statements relating to her case despite issuance of orders to that effect and therefore she did not know who are lined up to testify in her case.
51.Whilst appreciating that the charge facing her is serious, she averred that the evidence as proffered by the Prosecution witnesses remain untested and that this ought to be presented in court so as to afford her an opportunity to test the same as such the averments to the effect that the prosecution’s case is well grounded goes against her right to presumption of innocence as provided by Article 50(2) of the Constitution.
52.In response to the issue of being a flight risk, she stated that prior to being arraigned in the matter before court, she resided with the deceased at Syokimau though she had already expressed her wish to vacate the said house thus applying for permission to remove her personal effects. According to her, she is able and ready to find alternative accommodation to include relocating to Nakuru where her mother reside hence she can demonstrate where she will reside in the event she is admitted to bail and she expressed her willingness to abide by any conditions set. She also expressed her readiness to deposit her original passport in court if called upon to do so thus guaranteeing that she will be within the Courts jurisdiction and attend court diligently. She disclosed that she is well aware of the restrictions that may be imposed on her while being admitted me to bail and that the ramifications of going against the restrictions have been well explained to her by her advocate and that this shall include but not limited to, interfering with witnesses and going to an active scene of the crime.
53.In her view, investigations are deemed to be complete when the decision to charge is arrived at. In the instant case, it is apparent that investigations have been concluded and that if there is pending investigations, the same can proceed, her release on bond notwithstanding. It was her position that the victims’ family together with the Prosecution had not illustrated how she would impede, interfere and/or influence any pending investigations if released on bond and that no evidence had been led to support the allegations that she has the capacity and intent to impede, interfere and / or influence any investigations.
54.It was therefore her position that no compelling reasons had been presented in court, that may not be mitigated by issuance of strict conditions by the court, to warrant the decision to deny her bail. Based on legal advice, she averred that bail should not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution. She therefore urged the Court to admit her to favourable bail terms.
55.In a further affidavit, sworn on 11th February, 2022, the 1st accused stated that she did record her statement with the police when she was arrested and that she has remained in custody since arrest and further, no police officer has requested to have her record a further statement. She however asserted that she has equally advised of her right to remain silent, which right she has not waived.
56.It was her averment that the allegations made against her by the investigations officer remain unsubstantiated as no OB records, charge sheet and/or information regarding the allegations has been provided. In her view, the said allegations are malicious and aimed at misleading this court. She wondered how she got an opportunity to call and intimidate the witnesses while she was in remand awaiting a determination of her bond application, yet any calls made by herself while in custody are monitored and limited to her advocate and mother.
57.It was therefore her position that no compelling reasons have been presented to court so as to deny her bond application and she urged the Court to allow her application for bond and admit her to favourable bond terms.
58.There was also an affidavit sworn by Susan Wairimu Macharia the 1st accused person’s mother. According to her she resides in Ndege Ndimu estate within Nakuru Town with her other children. She confirmed that she was ready and willing with the family to accommodate the 1st accused person, at all times ensuring that she abides by any conditions that may be set by the court whilst admitting the 1st accused to bond terms.
59.On behalf of the 1st accused it was submitted that State’s prosecutorial powers are vested in the office of the DPP under Article 157 of the Constitution and that these powers cannot be delegated to the Victim and / or counsel appearing for the Victim. It was noted that the Prosecution had not tabled and/or filed any pleadings objecting to issuance of bond to the 1st Accused person. The only objection received was from the victim’s family which averments, in the 1st accused’s submissions, amounted to stepping into the role of the Prosecution as such usurping the powers conferred by Article 157.
60.It was submitted that under Article 49(h) of the Constitution, states that bail should be denied only when there are compelling reasons and that compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused person should not be released on bond. According to the 1st accused, each case presented before a court is unique and the compelling reasons given may differ with each case. However, there are certain principles that may guide the court in determining whether to grant bail, some of which are:a.Whether the accused persons were likely to turn up for trial should they be granted bail;b.Whether the accused persons were likely to interfere with witnesses;c.The nature of the charges;d.The severity of the sentence;e.The security of the accused if released on bond;f.Whether the accused person has a fixed abode within the jurisdiction of the court.
61.It was submitted that this court has been called upon to weigh the accused person’s right to bail under Article 49(h) against the reasons given by the state for denial of bail. While being alive to the fact that the offence of murder is a serious offence carrying a severe sentence if one is convicted, it was submitted that an accused person is presumed innocent until the contrary is proved. At this stage, it is premature, if not impossible to engage in an appraisal of the prosecution’s evidence and determine which direction it will lead to and whether or not there is a strong case against the 1st Accused person since mere suggestions, presumptions, insinuations and / or allegations do not constitute compelling reasons. In the 1st accused’s view, reasons presented in court in support of an application denying bond should have a basis, be factual and accurate and one may not simply throw allegations without availing proof thereof and hope that the Court will take the allegations as truths. It was contended that the Right to Liberty may only be curtailed if verifiable, justified and sufficient material is placed before the court to warrant the limitation.
62.In this case it was submitted that the 1st Accused person was not arrested while fleeing or while in hiding but was arrested at the hospital where she had taken the deceased in an attempt to save his life. The 1st Accused person has demonstrated that she is ready and willing to relocate to Nakuru Town where her mother has willingly agreed to accommodate her thus she has demonstrated that if released she will secure fixed abode within the jurisdiction of this Court. It was averred that the decision to relocate to Nakuru is also informed by the fact that if any investigations are pending, she has withdrawn from the alleged scene of crime and away from any potential witnesses.
63.The Court was therefore urged to admit the 1st Accused person to favourable bond terms as no compelling reasons have been presented to warrant a denial of bail.
64.I have considered the application, the affidavits both in support thereof and in opposition thereto as well as the submissions made.
65.The accused persons took issue with the extent of the victim’s participation in these proceedings contenting that the victims had taken over the role of the prosecution. Dealing with that issue the Supreme Court in Petition No. 23 of 2019 - Joseph Lendrix Waswa vs. Republic  eKLR held that:
66.In the case of IP Veronica Gitahi & Another vs. Republic (2016) eKLR the rights of a victim to participate in trial was discussed as hereunder:
67.Accordingly, I find nothing out of place with the participation of the victim’s family in these proceedings to the extent that they related to the release of the accused on bond or bail.
68.Article 49(1)(h) of the Constitution provides that:-An accused 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.
69.The Constitution does not define what qualifies under the term “compelling reasons”. The ordinary meaning according to Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain meaning it is apparent that the court would consider any fact or circumstances brought to its attention by the prosecution which would convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the accused will attend trial.
70.While the Constitution does not identify what qualifies under the term “compelling reasons”, Section 123A of the Criminal Procedure Code gives the parameters for the grant of the right to bail as follows:(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 or 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 fulfilment of obligations under previous grants of bail; and;(d)the strength of the evidence of his having committed the offence;(2)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.
71.The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail as follows:The following procedures should apply to the bail hearing:(a)The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:a.That the accused person is likely to fail to attend court proceedings; orb.That the accused person is likely to commit, or abet the commission of, a serious offence; orc.That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; ord.That the accused person is likely to endanger the safety of victims, individuals or the public; ore.That the accused person is likely to interfere with witnesses or evidence; orf.That the accused person is likely to endanger national security; org.That it is in the public interest to detain the accused person in custody.
72.It is true that the right to bail is not absolute and where there are compelling reasons the said right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. What the compelling reasons are, however, depend on the circumstances of each case and these circumstances are to be considered cumulatively and not in isolation. The mere fact therefore that the offence with which an accused is charged carries a serious sentence is however not necessarily a reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond appearing for trial. Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend the trial and whether or not the a free and fair trial can be achieved notwithstanding the release of the accused on bond. I associate myself with the view expressed by Muriithi, J in Kelly Kases Bunjika vs. Republic  eKLR that:
73.In determining whether or not a free and fair trial is possible the Court ought to take into account the circumstances of the accused as well as that of the potential witnesses. However, since the release on bond or bail is a constitutional right, it is upon the prosecution to satisfy the Court why a free and fair trial is not possible if the accused is so released.
74.The imposition of terms of the bail, if necessary, must similarly be for the purposes of ensuring the attendance of the accused at the trial and ought not to be based solely on the sentence that the accused stands to serve if convicted. It is therefore my view that the discretion to grant bail and set the conditions rests with the court. In exercising its discretion, the court must seek to strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of justice, the court will lean in favour of liberty and grant bail where possible, provided the interests of justice will not be prejudiced by this.
75.However, where the prosecution satisfies the Court that there exist compelling reasons which justify the denial of bail or bond, then the Court will deny the same.
76.Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release. In S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17)  ZWBHC 262 (31 August 2017), the Court held that:In other words, the possibility of a severe sentence enhances any possible inducement to the accused to flee. See also Aitken v AG 1992 (2) ZLR 249 and Norman Mapfumo vs. The State HH 63/2008… The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.”
77.In this case, it was contended that the accused persons have been charged with the offense of murder that attracts capital punishment/sentence and that the particulars of the charge are quite clear that the murder was most brutal, inhumane and very painful. Further, that there was a clear desperate attempt to cover up the heinous crime. Gravity of the offence as a consideration was appreciated however by Mbogholi Msagha, J in Criminal Application No. 319 of 2002 Priscilla Jemutai Kolonge vs. Republic (unreported) at page 3, wherein he held as follows:
78.That was the position in the case of Watoro vs. Republic  KLR 220, where the Court held thus:
79.The Nigerian Supreme Court (Justice Ibrahim Tanko Muhammad J.S.C.) set out some essential criteria on the issue of whether to grant bail in Alhaji Mujahid Dukubo – Asari vs. Federal Republic of Nigeria S.C. 20A/2006 as follows:(i)The nature of the charges;(ii)The strength of the evidence which supports the charge;(iii)The gravity of the punishment in the event of conviction;(iv)The previous criminal record of the accused if any;(v)The probability that the accused may not surrender himself for trial;(vi)The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;(vii)The likelihood of further charges being brought against the accused;(viii)The probability of guilty;(ix)Detention for the protection of the accused;(x)The necessity to procure medical or social report pending final disposal of the case.
80.However, in Republic vs. Danson Mgunya & Another  eKLR, the Court while appreciating the need in this Country to have a policy on bail/bond was of the view that the above criteria reflects the true legal position but opined that:
81.That case was decided before the policy on bail-bond was formulated. It is now clear that in interpreting the right to bail, section 123A of the Criminal Procedure Code which sets out the parameters for the grant of the right to bail.
82.In Kelly Kases Bunjika vs. Republic  eKLR, Muriithi, J was of the view that:
83.The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail.
84.From the constitutional point of view, however, an accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial. Therefore, the accused does not have to apply for release on bond since a person on whom rights have been bestowed under the Constitution is not obliged to ask for the same. This right can only be limited where it is shown that there exist compelling reasons not to be released. Those compelling reasons include the ones set out hereinabove. It is however my view that the burden to prove the existence of the said compelling reasons falls squarely on the prosecution. That was the position in Republic vs. William Mwangi Wa Mwangi  eKLR where Muriithi, J held that:
85.In this case, it is contended that the offence with which the accused are charged is punishable by death hence the accused are likely to be a flight risk. Further that the 1st accused is a holder of Kenyan passport and owing to the fact that she has several relatives outside the country, she might flee away in order to evade the judicial process. It was deposed that the 1st accused has always indicated her intention to leave the country and now that she is faced with the charge of murder, and having no children and with only her mother in the country, she would thus be more inclined to leave the jurisdiction of the court as she has more to lose if she stays here. In addition, she has no known source of income or any formal or informal employment and thus has no tangible attachment to any place of work or economic activity. In Foundation for Human Rights Initiatives vs. Attorney General  1 EA 120 it was held by the Constitutional Court of Uganda that:
86.As regards the same issue, Ochieng, J in Republic vs. Ahmed Mohammed Omar & 6 Others  eKLR expressed himself as hereunder:‘Murder, (like) treason, robbery with violence or attempted robbery with violence are offences which are not only punishable by death, but are by reason of their gravity, (taking away another person’s life, disloyalty to the state of one’s nationality, or grievous assault or injury to another person or his property), are offences which are by their reprehensiveness, not condoned by society in general. It would thus hurt not merely society’s sense of fairness and justice, and more so, the kith and kin of the victim, to see a perpetrator of murder, treason or violent robbery (committed or attempted) walk the street on bond or bail pending his trial. A charge of murder, treason, robbery with violence (committed or attempted) would thus be a compelling reason for not granting an accused person bond or bail.’Notwithstanding those remarks, the learned judge went ahead to grant bail in that case. I therefore believe that the judge did not, and could not have meant that once an accused person is charged with an offence punishable by death, that is reason enough to deny him bond or bail pending trial.”
87.According to the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic  eKLR, it is nolonger mandatory that those found guilty of murder must be sentenced to death.
88.As regards the allegation that the applicants’ place of abode and relatives are unknown, whereas that factor may, together with others, be taken into consideration, I do not understand the law to be that those who have no known source of income, place of abode or relatives are not entitled to bail pending trial. That kind of reasoning, in my view, would be clearly discriminatory yet the law presumes that all accused persons are innocent until proven otherwise. To my mind it is for that reason that the Court is given discretion to impose reasonable conditions for the grant of bail rather than to deny the accused bail.
89.It was further contended that the first accused person is violent in nature and indeed prior to the murder of the deceased, she had stabbed him twice more particularly in March 2015 and in 2020 occasioning him life-threatening injuries. She had also in the past threatened other family members including her brother’s daughter (from a previous relationship) with death. It was averred that the 1st accused is known to be a drunkard, an alcoholic, partakes marijuana and this has always landed her in trouble. It was disclosed that the 1st accused was charged at the Chief Magistrate’s Court in Kibera under Criminal Case No. 1295 of 2015.
90.Regarding the pendency of another criminal case, while the commission of another offence while one is out on bond may, depending on the nature of the offence committed, be taken into account in determining whether to release the accused on bond in a subsequent case or not, it is my view that it does not necessarily follow that that must always be the position. The nature of the offence committed must be considered. For example, a person facing a murder charge cannot be denied bail simply because while out on bail he committed a minor traffic offence. Secondly, the mere fact that a person who is out on bond is charged with commission of an offence which she denies cannot amount to a commission of an offence while out on bond since the accused must always be treated as innocent until found guilty. In this case, there is no evidence before me that the 1st accused has been found guilty of the offence in question. Therefore, it cannot be said with certainty that she did commit the said offence contrary to the conditions for her release on bond.
91.Unless care is taken when it comes to allegations of commission of another offence, malicious persons may be tempted to simply prefer charges against an accused person however baseless in order to deny them admission to bail.
92.It was averred that the investigating officers were still on the ground tracing for the associates who are close confidants of the accused and who will face the same charge when arrested and if released on bond will jeopardize the efforts of the investigating team. It was averred with respect to the investigations, that there is a possibility of other accomplices of the accused to be arrested and arraigned before this court and that the 1st accused if released will inevitably use her liberty to interfere with investigation in relation to her accomplices who are yet to be charged.
93.In this case, by 24th December, 2021, the accused persons were already in police custody. I have not been told how far the investigators have progressed in their investigations. According to the Information, the instant offence was allegedly committed on the night of 6th and 7th December, 2021. The Prosecution has not indicated what steps if any it has taken in apprehending the said suspects. An accused person cannot be denied his or her constitutional rights simply because the investigative agencies have not been keen in their work.
94.As regards the alleged threats by the 1st accused, one wonders how the accused has been sending threats to the witnesses while in custody. If she has been doing so through her family and or relatives, the question is what steps have been taken by the investigating officer to deal with the situation since the act of threatening witness amounts to commission of a criminal offence. The investigating officer has not told us what, if any action has been taken in regard to the said threats. In my view, the fact that an accused person is facing a charge of murder does not bar further charges being preferred against him/her, his/her being in custody notwithstanding since obstructing a cause of justice itself is a criminal offence. It is the duty of the State to ensure that all persons enjoy their fundamental rights and this applies to both the victims and the accused persons. I associate myself with the opinion expressed in Rep vs. Dwight Sagaray & Others High Court Criminal Case No. 61 of 2012 that:
95.In my view, there are in place constitutional and legislative mechanisms in place to protect witnesses who are shown to be under real threat if an accused person is released. Therefore, the Court in making a determination must consider whether such safeguards, if invoked, are unlikely to have any impact of the safety of the witnesses.
96.As regards the allegations that the 1st accused if a flight risk, it is contended that the 1st accused has relatives outside the country and has in the past expressed an intention to leave the country. In my view there is nothing wrong in one having relatives outside the country or one desiring to go in search for greener pastures outside the country. It is only where it is shown that the intention to leave the country is meant to evade the law that the denial of bail may be based on that contention. In my view, appropriate measures can be put in place to reduce the chances of an accused leaving the country. However, in that event, the Court must, as provided in Article 24(1)(e) of the Constitution, be satisfied that there are no less restrictive means to achieve the purpose other than the denial of bail. In other words, the Court is required to explore the possibility of achieving the primary objective of granting bail, which is the attendance of the accused at the trial, by imposing such conditions that would ameliorate the possibility of the exceptions being a hindrance to the fair trial.
97.It must however be appreciated that there is always a risk that an accused may abscond in any matter. In fact, it is not unknown that even in minor offences, the accused persons sometimes do abscond. Our Constitution has however taken a calculated risk of granting the right to be admitted bail to all accused persons save where there are compelling reasons shown to exist by the prosecution. It is therefore upon the prosecution to prove that the temptation for the accused to flee in a particular matter, based on convincing reasons, is so high that it amounts to compelling reason. Those circumstances cannot however be based on mere fear and speculation and each case must be considered on its own peculiar circumstances since each person whether accused or even a convicted criminal has the right to dignity of the person. Therefore, the decision whether or not to admit the accused to bail depends on the circumstances prevailing at the time when the application is made and may be subject to review depending on whether there are changes in those circumstances which warrant such review.
98.In Republic vs. Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 court defined the term “compelling reasons” as follows:-
99.Citing the same case, the Court in Felity Sichangi Nyangesa vs. Republic (2014) eKLR held that:
100.As I have stated above it is upon the prosecution to prove that there exist compelling reasons to justify the court in limiting the applicant’s otherwise constitutionally guaranteed rights. Such compelling reasons cannot be said to have been satisfied based on bare averments.
101.It was further deposed that while in police custody, the first accused declined to have an interview with the investigating team, thus denying them opportunity to know her background information and history and therefore her permanent/fixed place of resident is unknown. Article 49(1)(a) and (b) of the Constitution provides as follows:(1)An arrested person has the right—(a)to be informed promptly, in language that the person understands, of—(i)the reason for the arrest;(ii)the right to remain silent; and(iii)the consequences of not remaining silent;(b)to remain silent.
102.Therefore, the mere fact that the accused persons exercised their rights to remain silent cannot be used as a basis for denying them their constitutional right to bail or bond.
103.As regards the 1st accused’s place of a bode, there is on record an affidavit sworn by a person who has introduced herself to be her mother. Though, the family of the victim has raised some doubts as to whether the deponent is really her mother, the veracity of her averments can only be determined at the time of the approval of the surety should the 1st accused be released on bond or bail. In any case the probation officer’s report confirmed that the deponent was indeed the 1st accused’s mother.
104.While my view is that once an accused is arraigned before the trial court, whether or not an application for release on bail is made, it is the duty of the trial court to deal with the issue, where compelling reasons are given nothing bars the court from denying the release of the accused on bail for a definite period. In other words, the trial court may find from the material placed before it that at that stage it would not be just to release the accused on bail and that the application may be renewed at a later stage when the circumstances have changed, for example where vulnerable witnesses have testified.
105.In this case, I directed that a pre-bail report be prepared and pursuant to the said directions, a report was duly prepared. In the said report, the probation officer found that the 1st accused used to drink alcohol and smoked bhang for leisure and was having disciplinary issues while in remand. The report recommended that her release on bond be deferred till after a majority of the witnesses testify.
106.As for the 2nd accused, there was no adverse report save for the fact that she had no registration documents. It was recommended that she he released on bond but on stringent terms.
107.I have considered the foregoing. As regards the 1st accused, while I do not find the allegations made against her, on their own, as amounting to compelling reasons to deny her admission to bond or bail, the report of the probation officer reveals that it is in her own interest that she is rehabilitated before she can be released on bond. It is necessary that she be weaned off the effects of her alcoholism and bhang smoking which if she were allowed to continue with might adversely affect her in terms of adhering to the bail terms. According I, at this stage, decline to admit her to bond or bail. However, depending on her future conduct, this Court may well consider whether or not to release her on bond. In other words, her application to be released on bond/bail is declined as of now but she is at liberty to renew the same in the event that her circumstances change for the better and the state of the proceedings.
108.As for the 2nd accused I see no impediment to her release on bond as long as she is able to secure an appropriate surety to ensure her attendance at the hearing.
109.In the circumstances, I made the following orders:1.The 1st accused person’s application for release on bond is declined as at now but she is at liberty to renew the same in the event that her circumstances change for the better and the state of the proceedings.2.The 2nd accused may be released on bond of Kshs 500,000.00 with one surety of similar amount to be approved by the Deputy Registrar of this Court.3.She shall attend the Court whenever required to do so without fail.4.She shall not contact or intimidate, whether directly or by proxy, any of the witnesses in this case as per the witness statements and other documents that have been supplied by the State to the defence.5.In the event that any of these conditions are violated, she is liable to have her bail cancelled and she shall proceed with the case while in custody