Republic v Geoffrey Ndungu Willy & 4 others

5. He opposed that the 1st accused has previous criminal records, was on probation at the time of the murder, and that he uses phone numbers not registered under his name to conceal his identity. 6. He states that the 4th accused( Stephen Masheti Musodo) is alleged to be the leader of a criminal gang and was arrested at a border crossing after fleeing to Tanzania. 7. He depones that the 5th accused person (Evans Aseka Okututi), is described as a run-away criminal with no fixed abode, whom detectives are trying to link to other crimes in Likoni and Mombasa. 8. Accordingly, that the accused persons have no definite means of livelihood and may commit more crimes if released. 9. The deponent further states that the community is apprehensive of the accused persons, and their release could put the safety of prosecution witnesses at risk, as many of them are known to the accused. 10. In addition, he states that there were demonstrations on 19th January, 2025, in Elburgon and Molo following this murder, and the life of the accused persons may be in danger if they are released on bond. He reiterates that the accused persons face a serious charge that could result in a death sentence, providing an incentive for them to abscond. 11. In conclusion , he states that releasing the accused on bail is not an absolute right and, given the compelling reasons, the court should deny their request for bond or bail. Affidavit by deceased’s wife 12. The deceased’s wife (Margaret Mwihaki Njoroge) swore an affidavit on 13th June, 2025 in support of the prosecution. Noting that demonstrations erupted after her husband's death because people were angered she states that there is still high tension and hostility in Molo and its surrounding areas where the incident occurred. She fears that if the accused are released, the community may retaliate, putting the accused persons' safety at risk. 13. She claims that the accused persons might interfere with witnesses, which would compromise the administration of justice and a fair trial. She believes that potential witnesses may feel uncomfortable with the accused walking around, knowing their evidence is crucial to the prosecution's case. Due to these reasons, she believes there are compelling reasons to deny bail/bond. 1st Accused’s Replying Affidavit 14. He swore it on 7th April, 2025 and terms the prosecution’s Affidavit dated 13th March, 2025 as frivolous, vexatious and full of misleading information. He claims that though he had been charged with assault in a separate case being Criminal Case No. E2179 of 2024, the two cases are not related and that his co-accused in that case, John Ndegwa Wanjiku, is not an accused person in the current matter. 15. Claiming to be a professional blogger and businessman in Elburgon Town, a family man married to one Caroline Wambura with one child, and the sole provider for his family, including his parents, the 1stAccused refutes the allegation that he has multiple mobile numbers, stating his only number is 07XXXXXXX, which is registered in his name and fully operational. He depones that the prosecution’s Affidavit contains mere allegations as it has not provided any of the other supposed numbers belonging to him. 16. He depones that after the incident occurred, he reported to Molo police station on 24th February, 2025, and recorded a statement with the DCI there. He was told to go home and that he would be called back https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 2

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if needed. He was later called to the DCI offices in Molo on 2nd March, 2025, and arrested on suspicion of having murdered the deceased herein. 17. It is his position that there are no compelling reasons in his case to warrant him being denied bond arguing that he has a triable defence. He undertakes to abide by any bail or bond conditions imposed by the court. 2nd Accused’s Replying Affidavit 18. He swore it on 27th March, 2025 and terms the Prosecution’s Affidavit frivolous, vexatious, full of halftruths and an abuse of the court process. He explains that before his arrest on 23rd February, 2025, he was working as a DJ in Molo town to support his family and that around 17th February, 2025, a photographer named MK asked him for contacts of boda boda operators in Molo for personal work. 19. He ( 2nd accused) therefore sent the contacts from his phone book. Later, when MK’s calls were not going through, the 2nd accused called the operators himself and forwarded them money that MK had sent to his M-Pesa line. 20. He was surprised when he was arrested on 25th February, 2025, in Njoro and informed that he was a suspect in the killing of Richard Haga Otieno alias The Molo President. 21. He denies the claim that he was hiding in Tanzania and states that he had planned a trip to visit his hospitalised grandmother in Tanzania with the 3rd accused and had secured a temporary passport for a one-week visit. He takes great exceptions to the claim that he is capable of organising more criminal activities if released. He maintains that he has never been arrested for any crime before. 22. He contends that he never met the deceased or his family, making it unlikely that he would interfere with witnesses. He maintains that it is his constitutional right to be granted bail and that being charged with a serious crime does not automatically mean that he will abscond. He says that he is willing to abide by any bail conditions set by the court. He even offers to relocate to his wife's rural home in Murang'a during the pendency of this case. 4th Accused’s Replying Affidavit 23. This was sworn on his behalf by Ms Beryl Awuor advocate on 25th March, 2025. She maintains that the 4th accused has a constitutional right to be released on bail unless there are compelling reasons to deny it. Arguing that the 4th accused is presumed innocent until proven guilty, she states that any allegations against him must be supported by a conviction. 24. Counsel terms the argument that the 4th accused is a flight risk as unfounded as he was arrested in Molo and Elburgon, which are near the alleged crime scene. She contends that not having a definite means of livelihood does not make someone a criminal, and that having three mobile phones is not a crime under the Criminal Procedure Code. 25. While refuting the claim that the 4th accused was fleeing to Tanzania, Counsel argues that he has a constitutional right to freedom of movement and that his travel permit was only for a week, so he would have been in the country illegally if he had overstayed. 26. She states that the 4th accused cannot be a notorious ring leader as he has been in police custody since his arrest. She states that the accused cannot interfere with investigations once all witness statements have been recorded. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 3

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27. Terming the averments of Prosecution’s Affidavit presumptions and wild accusations, Counsel states that the 4th accused is willing to comply with any bail conditions set by the court to prove his innocence. 5th Accused’s Replying Affidavit 28. This was sworn on 26th March, 2025, asserting his constitutional right to bail under Article 49 (1) (h) of the Constitution unless there are compelling reasons to deny it. 29. He depones he has a fixed place of abode in Molo where he lives with his family and therefore, he is not a flight risk. He is willing to provide his contact details to the court and attend court as required. Stating that that he has cooperated with the Investigating Officers, he undertakes to present himself whenever needed and also undertakes not to interfere with witnesses or prosecution evidence . He is keen to have a fair trial. 30. He contends that his continued incarceration has caused him undue hardship, including emotional distress and has prevented him from providing for his family. Maintaining that there are no compelling reasons to deny him bond, he argues that the prosecution has failed to provide any evidence of risk factors such as interference with witnesses or that he is a flight risk. 31. He terms charges herein mere allegations yet to be proved and argues that his detention would unfairly prejudice his right to be treated as innocent until proven guilty, as enshrined in Article 50 (2)(a) of the Constitution. Submissions by Prosecution 32. On behalf of the prosecution, Mr. Kihara submits that in as much as Article 49 (1)(h) of the Constitution guarantees the right to bail unless there are compelling reasons to deny it, section 123 (A) of the Criminal Procedure Code, which aligns with the Constitution, requires the court to consider several factors when deciding on bail, which factors include; the nature and seriousness of the offense; the character and community ties of the accused; their record on previous bail grants; and, the strength of the evidence against them. 33. Arguing that a balance must be struck to ensure that the accused's liberty is not unfairly denied while the interests of the case are not prejudiced, he submits that security of the accused persons is of significant concern as the community was angered by the murder of the deceased, a political activist, and that demonstrations erupted after his death. 34. In support of that argument, reliance is placed on the case of Antonio Jacobie Snyders v The State (A455/2015) 2015 ZAGPPHC 618 where a South African court denied bail on the ground that the community opposed the appellant's release. In that case, the appellant conceded that there was enmity with the community and that he would not be accepted back with open arms. 35. It is his submissions that the release of the five accused persons could jeopardise the trial and their security considering that the area around Molo has been affected by a political firestorm and widespread unrest. He therefore suggests that a probation office report could assist the court by providing a community perspective on the matter. 36. He cites the case of Republic v Pascal Ochieng Lawrence [2014] eKLR where it was held that the duty rests on the State to demonstrate why bail should be denied based on several parameters including; the seriousness of the offense; the possibility of the accused interfering with witnesses; the safety of the accused upon release; and, whether the accused will appear for trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 4

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37. In this case, he submits that the 3rd accused (Joseph Kihara Kariuki) is a flight risk as according to the investigation report, the 3rd accused travelled to a neighbouring country after the incident and did not provide documents to confirm legitimate travel. He was only traced through intelligence. It is contended considering his family ties in Tanzania, it would be a challenge to trace him again if he absconds. 38. He submits that there are concerns on potential interference with civilian witnesses through threats, coercion, or undue influence, which could impact the outcome of the case and discourage witnesses from testifying due to security fears. He therefore suggests that the bond terms be considered after the civilian witnesses have testified. Submissions by the Victim 39. In support of the Affidavits by the Prosecution, the victim's family and the submissions, Ms Wamaitha of Wamaitha Makori & Co. Advocates for the victim's family lays emphasis on Article 49 (1) (h) of the Constitution of Kenya, 2010, which allows for the denial of bail or bond if there are compelling reasons. 40. Relying on section 123A of the Criminal Procedure Code on factors the court should consider when making a bail decision and the Bail and Bond Policy Guidelines which state that bail and bond conditions must be reasonable, but not so low that the accused would be tempted to forfeit the amount and flee, Counsel argues that there are compelling reasons to deny the accused persons bail. 41. It is her position that the murder led to public demonstrations in Molo and that there is still high tension and hostility and therefore, the community might retaliate if the accused are released. For those reasons, Counsel submits that the accused persons should be kept in custody for their own safety. 42. Further, she submits that there is likelihood that the accused persons will interfere with witnesses and this would undermine the administration of justice and a fair trial. She contends that potential witnesses may feel uncomfortable with the accused walking freely, knowing their evidence is crucial to the prosecution's case. 43. In support of her argument, reliance is placed on the case of Republic v Emannuel Olduati Sharkoyio[2021] eKLR, where it was held that interference with witnesses is a justifiable reason to limit a person's liberty under the Constitution. 44. In conclusion, Counsel urges the court to find that compelling reasons exist to deny the accused persons bail or bond. Submissions by Law Society of Kenya 45. These were filed through the firm of Guto Ogechi Advocates. Acknowledging the provisions of Article 49 (1)(h) of the Constitution, Section 123 (A) of the Criminal Procedure Code and the Judiciary's Bail and Bond Policy Guidelines, Mr. Guto argued that the accused persons are a flight risk on the grounds that they disappeared for several days after the murder on 19th January, 2025. 46. It is his submissions that the accused persons do not have fixed abode as they live in rental houses thus increasing the risk of them absconding. In support of this argument, he cites the case of Republic v Sifuna (Criminal Case E014 of 2023)[2023] KEHC 22379 (KLR) where the court denied bail partly because the accused had disappeared for six months after the offense and could not account for that period, making the possibility of them absconding not far-fetched. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 5

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47. Counsel submits that it is in the public interest to detain the accused persons as the deceased was a wellknown member of society, and news of his murder has caused public uproar and therefore, releasing them on bail could put them in harm's way from members of the community. 48. Further, he submits that the accused persons know the location of key prosecution witnesses and could compromise them or cause them fear and therefore likely to interfere with witnesses. 49. Citing the case of Republic v Gitau & 3 others (Criminal Case E016 of 2024) [2024] KEHC 14944 (KLR) where bond was denied, Counsel submits that some of the reasons for opposing the release of accused persons on bond were that; a close family member was a crucial witness and that the accused persons knew their residence ; there was overwhelming evidence against the accused and; the prosecution's intention to seek the death sentence raised the chances that the accused might be tempted to jump bail. 50. In conclusion, Counsel urges the court to find that there are compelling reasons to deny bail and bond to the accused persons. Submissions by 1st and 3rd Accused persons 51. On their behalf, Mr. Mongeri Advocate argues that the prosecution's claims are based on mere presumptions and lack evidence. In particular, he submits that the allegation that the first accused person has multiple phone numbers, some of which are not registered under his name, is mere word presented without proof and therefore, any such presumption should favour the accused. 52. Reiterating the provisions of Article 49 (1) (h) and Article 24 (1) of the Constitution, he contends that the onus is on the prosecution to provide forceful and convincing reasons for denying bail, not flimsy grounds. 53. To support his argument, he cited several cases including the case of Republic V Charles Omwoyo [2020]eKLR, where it was stated that the primary purpose of bail is to ensure the accused's attendance in court. 54. Regarding the prosecution's specific allegations, it is submitted that no evidence was provided to support the claim that the accused persons are likely to interfere with witnesses. It is further submitted that the accused's place of residence is known and therefore, the assertion that the accused do not have a fixed place of abode is farfetched hence a flight risk is far-fetched. 55. In conclusion, they urge this court to grant reasonable bond terms, guided by the Affidavits of the accused persons. Submissions by 4th accused 56. On his behalf, Ms Awuor lays emphasis on the provisions of Article 49 (1) (h) of the Constitution of Kenya and section 123A of the Criminal Procedure Code. She submits that though the right to bail is not absolute and is subject to the court's discretion, she submits that the discretion should be exercised judiciously based on the facts of the case. 57. Citing the case of Republic v Francis Kimathi [2017] eKLR , she submits that compelling reasons must be rousing, strong, interest’s attention, and brings conviction upon the court, and that flimsy reasons are not sufficient. 58. Further reliance is placed on the Court of Appeal case of Michael Juma Oyamo & Another v Republic[2017] eKLR, where the court adopted the definition from R v Joktan Malende and 3 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 6

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Others,Criminal 55 of 2009 that compelling reasons are forceful and convincing so as to make the court feel very strongly that the accused should not be released on bond. 59. Rehearsing the well-established factors that can be considered compelling reasons to deny bail, Counsel submits that no compelling reasons were provided to deny the 4th accused bail. She terms the prosecution's claims as baseless and unsubstantiated, specifically it’s claim of criminal activities for which the 4th accused has never been arrested or charged. 60. Citing the case of Republic v Antony Karanja Njeru[2016] eKLR, Counsel emphasises that an allegation of witness interference must be supported by evidence. In this case, she argues that the prosecution's claim that the accused might interfere with witnesses is unfounded, as witness statements have already been recorded and filed with the court. Counsel submits that interference with witnesses must be demonstrated more than a whimsical probability of interference. 61. Further, she submits that the prosecution failed to provide evidence that the accused is not a legal Kenyan citizen or that he is a flight risk. 62. In conclusion, counsel urges this court to grant the 4th accused bail and he has agreed to abide by any terms set by the court. Submissions by 5th accused 63. While laying emphasis on Article 49 (1)(h) of the Constitution of Kenya, Mr. Gati advocate submits that no compelling reasons have been established by the prosecution. On the claim of likelihood of absconding, he submits that the 5th accused is a Kenyan citizen with a fixed abode in Molo, has close family ties, and has shown a willingness to comply with court directives. 64. On allegation of interfering with witnesses, it is submitted that the accused undertakes not to interfere with witnesses and is willing to accept conditions that prohibit contact with them. 65. As regards the issue of threat to public order or security, Counsel submits that there is no evidence that the accused poses a danger to public order or security. On the issue that there is risk of accused reoffending, it is submitted that the accused has no prior criminal record or history of violence. 66. In support of the prayer for bail and bond, reliance is placed on the case of Republic v Joktan Mayende & 3 others [2012] eKLR where the court held that the burden lies with the State to prove compelling reasons and that mere allegations are insufficient. Further, Counsel cites the case of Nganga v Republic [1985] KLR 451 to emphasise that the seriousness of the offense alone, including murder, is not a compelling reason to deny bail. 67. In conclusion, Counsel urges this Court to admit the 5th accused to bail/bond on reasonable terms pending trial as the accused is ready and willing to comply with any conditions the court may impose to secure his attendance at trial, include depositing a suitable surety or cash bail, reporting regularly to the investigating officer or chief, and residing at a known and fixed location. Analysis and Determination 68. This court has considered the rival affidavits and submission by the parties herein in regard to the issue as to whether the accused persons should be released on bond or not. 69. As well submitted by parties herein on both the constitutional and statutory provisions , as well as the Judiciary Bail and Bond Policy Guidelines and case law, it is a principle of law that the discretion to grant or deny bail lies with the court putting into consideration the circumstances of each case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 7

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70. To start with, Article 49 (1) (h) of the Constitution of Kenya provides that “An arrested 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. 71. There is no doubt as regards the seriousness of the offence. The life of the deceased is alleged to have been cut short by people including the accused persons herein. Death is final and the fact that his s death is alleged not to be natural makes it most cruel. The deceased is deprived of his right to life. His death is a great loss particularly to his family. That may explain why the sentence provided for in the statute is heavy. 72. However, despite the above, Article 50 (2)(d) of the Constitution provides that;- “Every accused person has the right to a fair trial, which include-(a) to be presumed innocent until the contrary is proved.” Proof that the accused persons caused the death of the deceased can only be determined after the case is heard. The hearing of this case is yet to start. That proof of their guilt cannot be wished for or imagined. 73. Even if the hearing of case is yet to kick off, the prosecution carries the burden to satisfy the court that there are compelling reasons to deny the accused persons bond. Indeed, Section 123A of the Criminal Procedure Code provides;“ (1) (2) 74. 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; 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” Further, Paragraph 4.9 of the Judiciary Bail and Bond Policy Guidelines expounds on the factors for consideration on the issue of bond and these include;a. The nature and seriousness of the offense: The court may assume a higher incentive for the accused to abscond if the charge is serious and the potential punishment is severe. b. The strength of the prosecution's case: If the evidence against the accused is strong, particularly after prosecution witnesses have testified, it may be justifiable to deny bail as there is a greater incentive for the accused to abscond. Conversely, if the evidence is tenuous, pretrial detention is generally not warranted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 8

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c. Character and antecedents of the accused person: While these factors alone do not justify a denial of bail, they can contribute to a refusal when coupled with other adverse factors. d. Failure to observe previous bail/bond terms: If the accused has previously failed to comply with bail or bond conditions, this is a valid reason to deny future applications. e. Likelihood of interfering with witnesses: If there is a strong, unrebutted likelihood that the accused will interfere with witnesses, bail may be denied, especially if the court cannot impose conditions to prevent such interference. This is particularly relevant in cases of defilement or murder where witnesses are closely related to the accused. f. The need to protect the victim(s): Pretrial detention may be necessary to protect the victim(s) from the accused. g. The relationship between the accused and potential witnesses: If the accused is related to or in a position of influence over potential witnesses, there is a legitimate concern about the impact on the witnesses. While this doesn't automatically mean bail should be denied, it may require the court to impose specific conditions to prevent interference. h. Child offenders: The denial of bail or bond for a minor is generally not considered to be in the best interests of the child. i. The accused person is a flight risk: A foreigner without a fixed abode or hosts in Kenya may be presumed to be a flight risk, particularly if there is no extradition treaty with their home country. j. Whether the accused is gainfully employed: Being gainfully employed can enhance the likelihood that an accused person will attend trial. However, the type of employment (e.g., casual laborer) should not, in itself, be a basis for granting or denying bail. k. Public order, peace, or security: Pretrial detention may be necessary to preserve public order if there is evidence that the accused's release would likely lead to a public disturbance. l. Protection of the accused person: Pretrial detention can be necessary to protect the accused person themselves. 75. The prosecution, the victim's family and the Law Society of Kenya (LSK) cite several of the above factors in support of their arguments for denial of bond, some of them are not only unsubstantiated by the proponents but are also denied and /or challenged by defence as untrue while they attempt to explain others. 76. The 1st accused is alleged to be a flight risk based on a purported prior criminal record and the use of unregistered phone numbers but there is no evidence to support it. 77. Though the prosecution produced a single journey permit, in support of the allegations that the 4th Respondent is a flight risk, the same indeed confirms his travel to Tanzania for one week. 78. The 2nd and 3rd accused are alleged to have hidden in Tanzania following the murder while the 4th accused, is identified as a gang leader who allegedly fled to Tanzania. The 5th accused is labelled as a runaway criminal with no fixed abode who is under investigation for other offenses. Notwithstanding the seriousness of the allegations, no evidence has been presented to substantiate the claims against the 1st, 2nd, 3rd and 5th accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 9

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79. Regarding the 4th accused, the prosecution produced a single journey permit, in support of the allegations that the 4th Respondent is a flight risk. The same indeed confirms his travel to Tanzania for one week. 80. It is noted that all the accused persons maintain that they have fixed places of abode and are all family men who are bread winners for their respective families and are not a flight risk. 81. The Court takes judicial notice of the immediate unrest caused by public outrage over the death of the deceased which raises fears of the safety of the accused persons if released on bond. However, there is nothing to show that the same hostility still persist raising fears that the lives of the accused persons will be in danger. 82. Further the prosecution has not tendered evidence to show that the accused persons herein are unlikely to attend Court or are likely to interfere with the prosecution witnesses. 83. All the accused persons pledge to attend court as required and are further willing to abide by any terms this Court will set in allowing their application to be placed on bail/bond. 84. Generally, what the prosecution has demonstrated are fears but not compelling reasons to deny the accused persons bond . However, considering the nature of and the circumstances of this case, this Court makes the following Orders:1. The objection to bail and bond is dismissed. 2. Each of the accused persons is released on bond of Kshs.1,000,000/= with one surety of equal amount. 3. Each of the accused persons is prohibited from contacting or interfering any of the witnesses and their families. 4. None of the accused person shall leave the jurisdiction of this court without leave of this Court. DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF NOVEMBER, 2025. PATRICIA GICHOHI JUDGE Mr Mongeri and Ms. Molande for 1st and 3rd accused. Ms Molange H/B Ngugi for 2nd accused Mr Mongerei also H.b for Mr Gregory for 4th Accused and Mr Gati for 5th Accused Mr. Guto for LSK W/Brief for the family Mr Okiro Appearing with Wamaith for the family https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15646/eng@2025-11-04 10

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