Republic v Diana Mboga Govedi

got into her house and found the deceased’s there at an altercation ensured when she asked him what he was looking for, the accused got enraged and allegedly picked a knife from the kitchen and stabbed him severally. 6. The commotion attracted the accused immediate neighbour who called the security guards and the deceased friends who came to ascertain what was happening only to see the accused walking out of her house holding a blood stained knife with spots of blood all over her jumper, who was later on handed over to the police and the deceased taken to hospital where he was pronounced dead on arrival. 7. It was deposed that there was an apprehension of the accused interfering with four prosecution witnesses t, two who were her immediate neighbours, while two were their mutual friend with the deceased and that her safety could not be guaranteed as was almost lynched by the members of the public. 8. It was deposed that the accused did not have a permanent job or employment in Kenya and was likely to flee Kenya, if she reapplies for a passport, the old one having been torn during the melee. 9. In compliance with the bail bond policy guidelines, the court called for pre-bail report in which as regards the accused it was started that the same was at the time of her arrest operating her own salon and had just ended a romantic relationship with the deceased as at the time of the incidence. She was single without any child and was reportedly on antiretroviral treatment. 10. On community ties, she was known to the chief of Nzoia location and was considered a law abiding citizen. The Nyumba Kumi represented at Pipeline, who also serves as the care taker of the building where the accused resided was familiar with her but since he was recently appointed he could not give a true account of her character. The investigating officer opposed her released on bond on account of the fact that the deceased had many friends who were still grieving and that the accused safety and public order demanded that she remains in custody. On the other hand, her uncle who serves as her guardian and sister were willing to provide security to support bond and act as sureties. 11. On the deceased it was indicated that he was married with two children and that he had a wide cycle of friends due to his passion for ohangla music and that his death had been devastating both emotionally and economically and were therefore opposed to the release of the accused on bond. Submissions 12. The accused filed written submissions in which she contended that under Article 49(h) of the Constitution an accused person is entitled to bond as aright unless compelling reasons as contained in section 123A of the CPC are advance. In support of the submissions reference was made to the case of Michael Juma Oyamo & another v Republic [2019] eKLR. 13. It was submitted that the purpose of bail is to compel the attendance of the accused for trial and not to punish or condemn the same. It was contended that the reasons advance d by the prosecution through the affidavit of CPL Todd Achola was farfetched as and misleading based on his opinions and conjectures without proof. It was stated that the there was an allegation of that the accused was likely to compromise and or interfere with four prosecution witnesses but without proof thereof. In support reference was made to the case of Republic v Sifuna [2023] KEHC 22379 where the court held that the fact that the witnesses are related to the accused cannot be a measure of imputing interference. There has to be a demonstration of real likelihood on the alleged interference. 14. On the allegation of the accused being a flight risk it was submitted that the same was without proof since her pass port was being held the police. It was contended that the purpose of bond remains to secure the attendance of three accused to trial as was stated in Njenga v Republic [1985) KLR 451 and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19360/eng@2025-12-18 2

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that the burden of proof was always with the prosecution as was stated in Republic v Danson Mgunya & another. 15. On behalf of the prosecution, Ms Ogweno restated the content of their affidavit and submitted that the accused was likely to interferer with four witnesses, two who were their immediate neighbours and two who were their mutual friend. It was contended that the security of the accused was not guaranteed since she was almost lynched by the members of the public and had to be rescued by the police on patrol. It was submitted that there was animosity between the accused and the friends of the deceased and that the same was a flight risk. 16. While this matter was still pending, the court received a letter dated 12th November 2025 from one Timothy Wambua who described himself as a concerned citizen who stated that he was drawing the courts attention to the alleged deteriorating medical condition of the accused person and that it had been reported that despite repeated pleas the inmate had not been accorded the necessary medical treatment and her health had worsened significantly. He therefore sought that the matter be presently directly before the Presiding Judge of the Court a request which he stated was made in good faith, purely in the interest of protecting constitutional rights and human dignity. 17. In response to the said letter the court fixed the matter for mention at which the accused through her Advocate Mr. Oyatta stated that upon receipt of the copy of the said letter, they obtained a letter from the prison medical officer who confirmed the medical status of the accused and that they filed an application which sought that the ruling date be brought forward in view of the medical condition of the accused from the earlier date of 3rd February 202. 18. That application was supported by the annexed affidavit of the applicant in which she deposed that she had a lifelong medical conditions of asthma, hypertension and also on treatment for Human Immunodeficiency Virus and that since her admission to Remand her health had been deteriorating with constant attacks bordering convulsions and was therefore in need of proper medical attention. 19. For record purposes the said Mr. Wambua appeared on the virtual court and when asked what interest he had in the matter, he stated that he usually attend court so as to see what was happening and how he could assist 20. Ms. Maina who appeared for the state, stated that she had not been served with the application and the letter from the concerned citizen. Determination 21. Since the application had been urged, the court brought the ruling herein forward but noted that where the accused person was represented by counsel, as in the present case, it is good manners that any communication to the court by the accused be through the Advocates on record so ass to avoid a situation where some busy bodies would act as intermediaries for a purpose and objects which are not clear and which in the view of the court amounts to interference with the judicial processes. 22. Bond bail is a constitutional right of every accused person under article 49(1) (h) which may only be limited where there are compelling reasons what constitute compelling reasons have been captured in the Judiciary bail and bond policy Guidelines and by the court of Appeal in the case of Michael Juma Oyamo v7 another v Republic [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 . 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19360/eng@2025-12-18 3

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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 v 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. 23. In this matter the prosecution advanced three reasons which they considered to be compelling enough to enable the court deny the accused her right to bail. The first reason advance was that the accused was likely to interfere with four un-named witnesses. The only reason advanced for the likely interference was that two were the accused neighbours while two were mutual friends of the accused and the deceased. However, the prosecution was silent on the nature of the feared interference and as to whether there had been any attempt at interference. 24. The court in the case of Republic v Dwight Sagaray & 4 others [2013] KEHC 3824 (KLR) where the court stated that before any one can say that there would be interference with witnesses at least some facts should be led to court otherwise it is asking court to speculate. The court stated that for the prosecution to succeed in persuading the court, it must place materials before the court which demonstrate actual or perceived interference. It must show the court for example the existence of threat or threats to the witnesses, direct or indirect incriminating communication between the accused and the witnesses and or close familial relationship between the accused and the said witnesses. 25. In this matter as stated herein the prosecution is silent on the alleged interface save for the fact that the accused is a neighbour to two witnesses and that two other witnesses are mutual friends of the accused and the deceased which facts in themselves cannot constitute inference of interference. 26. The other factor brought out by the prosecution is the fact that the accused is a flight risk, the accused has countered this by saying that her passport was destroyed by the deceased on the material day and that the same is in the custody of the prosecution. Whereas lack of passport is not sound proof of the inability of the accused person to abscond, for one does not need a passport to get out of Kenya into the neighbouring countries, I how ever take the view that for the prosecution to succeed on this ground, they need to show that the accused has connections and contacts which will make it possible for the same to survive out of the country. 27. The prosecution in my view has failed to show that the accused has any connections and or roots out of the country and therefore find and hold that this limb of compelling reason has not been proved to the required standard. 28. On the issue of the safety and security of the accused, the accused like any other citizen of the republic is entitled to safety and protection and the friends of the deceased for whatever reason have no right to take the law into their own hand otherwise we shall be living in a failed state. I take the view that if there was any threat to the safety of the accused the same would have been capture in the pre-bail report. 29. I therefore find and hold that the prosecution has failed to provide compelling reasons to enable the court deny the accused the enjoyment of her constitutional right under Article 49(1) (h). 30. Whereas the accused had stated that the same is currently under medication for HIV, I take the view which is supported by scientific finding that HIV is the current “homa” or flue which is no longer life threatening and which with proper medication and diet cannot be said to be life threatening and can be adequately managed in prison as has been confirmed by the prison authorities 31. In the final analysis I grant the accused the enjoyment of her right to bail bond on the following terms and conditions: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19360/eng@2025-12-18 4

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32. a. Bond of Kenya shillings five hundred thousand (kshs 500,000) together with one surety of like amount b. In the alternative cash bail of Kenya shillings two hundred thousand (kshs 200,000) with one recognized Kenyan citizen of good standing c. The accused shall not interfere with any of the prosecution witnesses in whatever form d. The accused shall only renew or apply for re-issuance of her passport with the express authority of the DR of this Court. And it is ordered DATED SIGNED AND DELIVERED THIS 18th DAY OF DECEMBER 2025 J. WAKIAGA JUDGE In the presence of: Court assistant – Irene Ms. Ogweno for the state Ms. Oyata/Mr. Kirina for the accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19360/eng@2025-12-18 5

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