Republic v Moses Musyoki Alias Kabogo

4. One of the key arguments is that the Accused, in the company of four others, allegedly assaulted the deceased, Eric Kivuti Njiru, on the night of 3rd June, 2023, whereby the deceased succumbed to injuries sustained as a result of this the following day. According to the investigations, the attack took place in the presence of members of the public who rescued the deceased. Also, it is alleged that the incident has caused significant unrest and agitation in the community where it occurred hence raising concerns about the Accused’s safety if he were to be released on bail. 5. Additionally, the Investigating Officer emphasized that the Accused’s identity remains unclear because when asked to produce an identification card, he failed to do so hence raising doubts about his true identity. Further more, the Prosecution has highlighted that the Accused does not have a known and or a fixed place of residence as the investigations have indicated that the Accused was residing in a market place with no specific address or stable home. 6. In summary, the Prosecution has argued that the combination of the Accused’s involvement in a fatal assault, the agitation of the local community, his unclear identity, and the absence of a fixed place of residence constitute compelling reasons to deny the accused release on bail at this stage of the proceedings. 7. In response, the accused filed a Protest Affidavit sworn on 11th December, 2023, asserting that his constitutional right to bail under Article 49 (1) (h) of the Constitution. He has argued that the Prosecution has not demonstrated any compelling reasons to justify the denial of his release on bail and maintain that the Replying Affidavit was premature and had been made in bad faith, as there was no evidence adduced to confirm that he was a flight risk, had interfered with witnesses, or had previously absconded court proceedings. 8. The court also called for a social inquiry to be conducted in respect of the accused and a pre-bail information report to be filed. This report was filed on 18th September, 2025. Analysis and Determination 9. 10. Having carefully considered the grounds upon which the application for review have been made, the submissions from both parties and reviewed the Bail Information Report filed on 18th September, 2023, the court is tasked with the duty to determine:a. Whether the Accused is entitled to bail pending trial; or, b. Whether the Prosecution has demonstrated the existence of compelling reasons to justify the denial of bail, as provided for under Article 49 (1) (h) of the Constitution. It is trite that while the release on bond or bail is a constitutional right under Article 49(1)(h) of the Constitution, the same is not absolute. This right to bond/bail may be denied if compelling reasons are demonstrated to a court. Under Article 49(1)(h) of the Constitution states:“ An accused person has the right… (h) 11. to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released." From the above – cited statute provisions, the Court is required to determine whether the reasons advanced by the prosecution are compelling enough to deny an accused release on bond/bail. In https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17276/eng@2024-10-04 2

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the case of Republic –vs- Joseph Thiongo Waweru & 17 Others [2017] eKLR, the court defined ‘compelling reasons’ as: “ The Constitutional standard for denying bail is the ‘compelling reasons’ test. The burden is on the Prosecution to establish the existence of ‘compelling reasons’ that would justify denial of bail. The evidence presented must be cogent, very strong, and specific, with mere allegations or suspicions being insufficient.” 12. Moreover, the factors to be considered when assessing bail and bond applications are outlined in Section 123A of the Criminal Procedure Code, Chapter 75, Laws of Kenya. These factors include:a. The nature and seriousness of the ofience; b. The character, antecedents, associations, and community ties of the accused person; c. The Accused's record in fulfilling obligations under previous grants of bail; and d. The strength of the evidence against the Accused. 13. In this case, the seriousness of the charge of Murder cannot be understated as this is one of the most severe ofiences under the Penal Code, hence the demand for a careful scrutiny of the circumstances surrounding the application for bail. Additionally, on the Prosecution’s claim that the Accused has no fixed place of abode and lacks identification documents hence raising legitimate concerns about his potential to abscond, the Bail Information Report has indicated that the Accused has loose family ties and has not been in regular contact with his siblings, which could make it difficult for the court to monitor him if released on bail. The accused has not rebutted this claim in his affidavit of protest. The Probation Officer also noted that the accused is not certain on who can stand as his surety since his family is disintegrated. 14. Moreover, the court cannot ignore the agitated state of the local community as deponed by the Investigating Officer which poses a genuine threat to the Accused’s safety if released. Therefore, while the Accused has a right to bail, the possibility that he could be harmed if released is an important matter of concern, worth of consideration. 15. In conclusion, while bail is a constitutional right for an accused, the same is not absolute. The court has an obligation to balance the rights of an accused with the interests of justice, the safety of the community and that of the accused. In light of the seriousness of the charge, the Accused’s unclear identity, lack of a fixed residence, and the potential risk to his safety, this court finds that the Prosecution has presented compelling reasons to warrant the denial of bail/bond terms for the accused person at this stage. The accused to remain in custody pending the hearing of his trial unless there is demonstrated a change in circumstances. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 4TH DAY OF OCTOBER ,2024. D. O. CHEPKWONY JUDGE In the presence of: Mr. Gacharia counsel for the State Mr. Ngeresa counsel for accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17276/eng@2024-10-04 3

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Accused – present Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17276/eng@2024-10-04 4

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