Republic v John Kyama Wambua

Further it was stated that one prosecution witness who was their landlady is well known to the accused , there was the possibility that if released on bond , the accused would intimidate and instil fear or coerce her not to give evidence. 6. It was deposed further that the there was a rise in femicide in the country and therefore the release of the accused would jeopardize community peace 7. In response, the accused filed a replying affidavit in which it was contended that his grandmother , mother and younger brother were solely dependent on him and therefore his detention will subject them to unnecessary suffering. 8. He deposed that he had no intention of whatsoever interfering with witnesses and that he was not a flight risk, without any intention whatsoever of relocating from the country. He undertook to attend all the mentions and trial as directed by court without fail. 9. In compliance with the Bail and Bond Policy Guidelines, the court called for and received the pre-bail report in which it was stated that : the accused father was a primary school teacher, while the mother was a small-scale businesswoman. That the accused had a cordial and close relationship with his family as reflected in the family support. The accused relocated to Nairobi in the year 2021 and in the year 2023, he married the deceased , who was a homemaker. 10. On the victims concerns, it was stated that the parents separated when she was six years old and that she was largely brought up by well-wishers. She was nineteen years old at the time of her demise. Her mother had been psychologically affected by the death of her first-born daughter and that the accused family had shown remorse and had contributed towards the funeral expenses, she therefore had no objection to the release of the accused on bond. 11. On community ties , the Area Assistant Chief and Village Elder were familiar with both the accused and the deceased as well as their families and that the accused poses no threat to himself and the public . Determination 12. Bond is a constitutional right of every accused person under Article 49 and may only be limited if the prosecutions provide to court compelling reasons which the Court of Appeal in Michael Juma Oyamo & another v R [2019] eKLR stated to be forceful and convincing as to make the court feel strongly that the accused should not be released on bond , thus the accused should not be denied bond on flimsy ground but on real and cogent grounds that meet the constitutional standards . 13. These reasons are captured in section 4.9 of the Bail and bond Policy Guidelines which were further captured in section 123A (1) of the Criminal Procedure Code 14. The court however should not lose sight of the fact that the purpose of bond is and remains to secure the attendance of the accused to court during the period of his trial and that the right to liberty should never be curtailed as was stated in Republic versus Nuseiba Mohamed Haji Osman [2018] eKLR, denial of a constitutional right is not to be treated lightly and any claim made against an accused person towards curtailing his liberty must not be made on speculation and conjectures. 15. In this matter, the prosecution, the prosecution contended that the applicant did not have a fixed abode as he used to stay in a rented house which is not guarantied and that some other accuse witnesses were known to the accused and were likely to be interfered with. 16. For the State to succeed on the claim of witnesses’ interference, the jurisprudence from the Superior Courts is that the same must prove the nature of the interference and the relationship between those witnesses and the accused as was stated in the case of Dwight Sagara. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11364/eng@2025-07-15 2

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17. In this matter the State has failed to show how the accused will interfere with the unnamed witnesses save for the fact that the accused was a tenant at her building and that the other witnesses was a caretaker thereat. 18. On the issue of the rise in femicide cases in the country, the prosecution has further failed to satisfy the court that the release of the accused herein will disturb the public order and the nature thereof . 19. I am therefore not satisfied that the prosecution has provided adequate compelling reasons to enable me deny the accused his constitutional right under Article 49(1) (h) and that the prosecution concerns will be addressed by adequate bond terms. 20. Having taken into account the nature of the offence and the circumstances thereof as provided for by the prosecution in the affidavit opposing bail and the pre-bail report, the accused shall be released on bond/bail on the following terms and conditions: a. Bond of Kenya shilling five hundred thousand (Kshs 500,000) with one surety of similar amount b. In the alternative cash bail of Kenya shillings two hundred thousand (Kshs 200,000) with two sureties of similar amount c. During the period of this trial the accused shall make no contact with any of the prosecution witnesses unless the same is done in the presence and with the concurrence of the Investigating Officer. d. The accused shall not go back to his rented house at Kasnova Area of Mathare, save for the purposes of taking away his items therefrom which must be done in the presences of the representative of the deceased family and the Investigating Officer e. The accused at the time of bond approval shall provide his alternative place of abode during the period of trial and shall be reporting to the Assistant Chief of the said area every last Thursday of each subsequent month until the final conclusion of this cause and or as otherwise directed by the court. DATED SIGNED AND DELIVERD THIS 15TH DAY OF JULY 2025 J. WAKIAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11364/eng@2025-07-15 3

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