Republic v Lucas Chege Kuria

concerns should be addressed. The report states further that the accused’s family is willing to stand surety for him in case bond is granted. 6. I have duly considered the application for reasonable bail/bond terms by the accused persons, the pre bail report on the accused person, supporting affidavit by the investigating officer and the submissions by both Counsel. 7. Counsel for the accused is of the view that nothing stands in the way of the accused in getting bond since the pre bail reports availed to the court are favourable to the accused. Counsel points out the apprehensions by the Counsel for the state are tantamount to testifying from the bar as they are not supported by the Investigating officer’s affidavit. 8. Counsel for the state has raised an objection based on one issue which is the likelihood of interference with witnesses. He cites that the eye witnesses to the offence are close relatives being maternal cousins to the accused and that their interaction at this stage may compromise the trial. Whereas this apprehension is not supported by the pre-bail report, it is a basis for a compelling reason which cannot be wished away. 9. It is worthy to note that the fact that the intended witnesses and the accused are family is very reason that the probation has recommended bail while the same is relied upon by the prosecution as a compelling reason. 10. In the respectful view of this court, this court has jurisdiction and discretion, to consider review of this application which was in abeyance pending the pre bail repots by the Probation office. The said report has not raised any fear of apprehension of likelihood of interference. 11. The High Court in Republic v Irungu alias Jowie & another [Criminal Case 51 of 2018] [2020] KEHC 8361 [KLR] [Crim] remarked that: “ Whereas it is clear that the court has discretion to grant bail at any stage during trial, when the application for bail is made during the course of trial, one of the compelling reasons which the court has to take into account is the strength of the prosecution, as provided for under the Bail and Bond Policy Guidelines at 4.9 [b] as follows:“An accused person should not be subjected to pre-trial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pre-trial detention where the evidence against the accused person is strong. For example, where all the prosecution witnesses have testified and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond as should therefore be denied bail – see Republic v Margaret Nyaguthi Kimeu [2013] eKLR.” 12. The court in the Jowie case [supra] further remarked that: “ 16. .. the strength of the prosecution case in itself, alone is not a good ground to deny an accused person the enjoyment of his constitutional right to bail. It must be demonstrated that by virtue of the strength of the prosecution case, there is a great incentive on the part of the accused person to abscond so as to defeat the course of justice. At this stage the court is not expected to go into the merit of the case. In making the said determination, the court must always balance between the conflicting interest of the State to bring offenders to trial and to dispense justice and the protection of the right of citizens, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11459/eng@2025-07-31 2

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the presumption of innocence, which require that no one without justification should be deprived of personal liberty.” 13. The court at this stage in the trial, is not in a position to conduct a risk assessment as to whether the accused person is likely to abscond, should he be released on bail and therefore takes the view that unless the bail terms and conditions cannot guarantee his attendance to court, a person who has not been convicted for an offence is entitled to bail, unless compelling circumstances militate against his admission to bail. 14. In the Jowie Case, Wakiaga J, remarked thus: “ An accused person cannot be kept in detention pending during trial as a form of anticipatory punishment. The presumption of not guilty as stipulated in Article 50[2][a] of the Constitution, is that he is innocent until his guilt has been established by the court beyond any reasonable doubt and not on the strength of evidence so far tendered. This is the purpose for which Article 49[1][h] of the Constitution and Section 123 of Criminal Procedure Code are part of our legal system.” 15. It is trite that the purpose of bail and bond is to secure the attendance of the accused person to court in accordance to the Bail and Bond Policy Guidelines, restated as general guidelines at Paragraph 4.9 that: “ In terms of substance, the primary factor considered by the courts in bail decision – making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences”. 16. Having stated the legal principles and considered the affidavits and the pre-bail report in respect of the accused person and oral submissions by the both Counsel I find that likelihood of interference with the key witness is compelling reason for this court deny the accused persons bail/ bond at this juncture. 17. Having made the above finding, this court notes that the two key witnesses is not only crucial for the prosecution case, but that it stands in the way of the accused person to his access to the right to bond/ bail. 18. The court proceeds to make the following orders: i. That this matter be mentioned before the Deputy Registrar date 10th Nov 2025 with a view to fixing a hearing date on a priority basis ii. The Prosecution to secure attendance and testimony of all the key witnesses at the first instance. iii. Bail/Bond Application to be reviewed upon testimony of the two key witnesses. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31ST JULY, 2025. HON. T. W. OUYA JUDGE For Appellant………Wanjiru Maina HB Matu For Respondent……P. Mwangi Court Assistant……Brian https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11459/eng@2025-07-31 3

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