Republic v Benson Matoi Kinyenze & 6 others

c. 3rd Count The seven accused on 12/4/2024 at B2 Katoteni area in Lower Yatta Sub-County within Kitui County, jointly and with common intention with others not before court murdered one Muthangya Mulwa. d. 4th Count The seven accused on 12/4/2024 at B2 Katoteni area in Lower Yatta Sub-County within Kitui County, jointly and with common intention with others not before court murdered one Bonface Kalumbo Kimanzi alias Bon. 2. The accused person denied the charges. This application relates to a renewed application for bail by all accused person. Background: 3. The brief background is that the accused were charged separately before this court on various diverse dates and the prosecution applied for the cases to be consolidated. Criminal Cases No. E039/2024, E040/2024, E042/2024 and E043/2024 were consolidated on 16/10/2024. The accused who were charged in those respective court files pleaded not guilty to the charges. They applied for bail but the same was declined vide a ruling delivered by Justice Limo on 24/10/2024 on the grounds that 2nd & 3rd accused were a flight risk given the number of serious cases facing them. They were however, given liberty to apply for review at a later stage of the trial and the court would consider the application on merits. 4. As for 1st & 4th accused the court denied them bail on the ground that the state had advanced compelling reasons to deny them bail, at least for the time being. The record shows that later on 14/11/2024 Criminal Case No. E044/2024 was consolidated with this case. The accused person in the matter were Muema Kilonzo and Meshack Kyalo Kavulu, 5th & 6th accused respectively. The 5th & 6th accused applied for bail but it was denied on the ground that there were compelling reasons as the ground was volatile given that there has been several murders and serious assault incidents. The accused were advised to apply for review of the order at a later stage. 5. The accused renewed their application for bail on 17/12/2024 but they were unsuccessful as the Judge ruled that the circumstances on the ground had not changed on the ground to warrant review of the said application. Again on 11/2/2025 the accused applied for review of the ruling denying the accused persons bail. The contention was that the 1st, 2nd, 4th & 5th accused had a pending case which terminated in their favour and they were acquitted. 6. At the same an application for bail for the 3rd accused was argued. The applications were opposed by the prosecution on the basis that the families of the deceased were opposed to their release on bail. The prosecution further urged the court to note that there were rulings by this court and by a Judge at Machakos High Court in which bail was denied, the option left was for the accused was to appeal against the said rulings. 7. The prosecution further stated that there were suspects who were at large and the accused were likely to interfere. The bail can be denied if there are compelling reasons. The accused maintained that there were no compelling reasons to deny the accused person bail. This court however, dismissed the application on the grounds that it lacked merits. 8. In the meantime, the murder File No. E039/2024 was consolidated with File No. E008/2025. The accused did not relent, they renewed their bail application once again contending that there are https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 2

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circumstances which show that they deserve to be granted bail. They urged the court to call for a social inquiry report for the seventh (7) accused and for the rest of the accused for the court to consider whether the circumstances had changed. It was also argued that the 1st, 3rd and 7th accused have had health issues while in prison where they are not getting proper treatment. 9. After considering all the arguments by the state and the defence, the court directed that: 1. The accused be examined at Kitui Level 4 Hospital and medical reports be filed in court. 2. A social inquiry repor be filed by the Probation Officer. 3. A formal application for bail be filed and served on the prosecution. The Application 10. This ruling relates to the Formal application for bail dated 23/6/2025. The application is filed under Article 48, 49 & 50 of the Constitution of Kenya 2010 and seeks the following orders: 1. That the application be certified as urgent and be heard on priority basis. 2. That the court be pleased to admit each of the accused person to bond and/or bail on reasonable and affordable terms pending trial. 3. That costs of the application be in the cause. 11. The application is supported by the affidavits of the accused persons and is based on the grounds that the accused were arrested on various dates and charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. That various application for bond have been unsuccessful. That the social inquiry report for each accused person has been filed in court and states that there is nothing in the personal antecedents of the accused persons that would make them undeserving of bond, the accused have no record of conviction and that there is no threat of lantessness as the government has stepped up and put in place structures to ensure peace and accountability in the area. There is therefore no threat to the safety of the accused persons. That all those who were interviewed with the exception of the victims family had positive things to say about the accused and have no objection to the accused getting back to the community. 12. That the accused have been in remand for the last nine months and their trial has not commenced. That Benson Kinyenze was suffering from hypertension and has been on medication for more than two years. That Kasinga Ndungu is hypertensive an is suffering from osteoarthritis while 7th accused has a back injury. That there is no threat to the families of the deceased or any of the witnesses as the accused do not generally reside in the same locality with the families of the deceased persons. 13. That it is in the interest of justice that the application be allowed these grounds are reiterated in the affidavits of the accused persons which I have perused. They affirm that they are innocent and commit themselves not to interfere with the witnesses and to obey all orders and directions of the court. The accused have relied on the social inquiry reports filed in this court by the probation officer. 14. In response to the application, the state filed a replying affidavit sworn by Inspector Patrick Katana who is the investigating officer in the murder cases and is fully conversant with the facts of this case. His contention is that the affidavits of the applicants have not raised any new issues apart from the ones already stated in this court when they sought to be released on bond. He contends that he was not interviewed by Veronica Nyingi who compiled the social inquiry report. That he has had a conversation with the assistant chief and the families of the victims who have stated that the social inquiry report is suspect as they had complained against her and she only interviewed on Breda Kimanzi. He attached https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 3

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affidavits of the representatives of the families of the victims and letters of ODPP & the Probation Officer. 15. He further contends that the social inquiry was conducted in a different locality from the one where the offence was committed. The investigating officer further avers that he situation on the grounds has never been clam owning to the fact that there are other persons of interest who have been detained after noting that the accused persons are in court and if the accused are released, chaos will erupt especially owing to the fact that there are witnesses who will testify against the accused person and these are not matters to joke about, they require level mindedness otherwise the consequences might be dire. 16. The respondent further overs that there were no treatment notes attached to the medical reports by the three accused persons and have not indicated whether the medical care at the prisons department is wanting. He further contends that the security in the area shall be compromised as there are other persons of interest who are still at large. That the right to bail is not absolute and may be denied if there are compelling reasons. 17. That the accused are likely to abscond owing to the possible maximum sentence and the gravity of the charges. He further avers that some of the accused committed the offence while out on bond and are likely to commit offences of released. It is further contended that the security of the accused persons cannot be guaranteed due to likely revenge mission. That witnesses are likely to feel threatened if the accused are released on bond. That the security teams are treating the incident as a crime committed by an organized criminal gang owing to the motive behind it. That the release of the accused on bond pending trial may pose a threat to National Security. The investigating officer was cross-examined by the counsels appearing for the accused. 18. He admitted that the accused persons are not a flight risk. That the 3rd accused was arrested here in the court at Kitui, the same with 6th accused. He also admitted that there is a security committee chaired by the County Commissioner. That the probation officer in her report has stated that the security issue has been addressed. That the security issue has been beefed up in the area and that is why there is calm and some accused are in custody. That he does not know where the accused come from. 19. The court enquired from the witness as to whether any of the accused holds a position of influence in that community and though he said one of them is a youth leader it was not substantiated. The application was canvassed by way of written submission which were also highlighted in open court. Submissions by the Accused 20. It is submitted that the accused have filed a fresh application for bail due to change of circumstances and more particularly after they applied to be escorted to hospital and medical reports were filed in court. That some have heath challenges. That it is nearly one year after the offence was committed and a social inquiry report shows that the circumstances have changed, there is no insecurity. It is further submitted that under Article 49 of the Constitution Bail is a Constitutional right. He urged the court to consider the Bail and Bond Policy Guidelines with regard to the right of the accused to be presumed innocent. 21. That there are no compelling reasons to deny the accused persons bails. That compelling reasons must be real, tangible, factual and life to defeat Constitutional parameters for denying the accused the right to bail. That the state has not adduced compelling reasons to deny the accused person bail. That there was no evidence tendered before this court to show that the accused are likely to abscond. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 4

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The Prosecutions Submissions 22. They have submitted on the contention that the circumstances have changed. That the social inquiry reports have been falsified as the victims have said that they were not interviewed. He relies on the written submissions. Submissions by counsel for the families of the victims. 23. He submits that the accused had applied for bail previously and the court gave ruling, one by Justice Limo, the second by a Judge at Machakos and I have also given a ruling on bail application. He contends that the report by the Probation Officer is disputed by the state and the victims. The social inquiry report failed to disclose that the accused have matters in court Criminal Cases No. 288 and 296/2024 against Kasinga, 3rd accused and one against the 7th accused. That one of the victims was a key witnesses in the case that was in court No. 4. He died before he could testify. That the 7th accused was out on bond. That he brought medical report from Mama Lucy Hospital which was not genuine and was intended to sway the court. That it is only fair that the accused remains in custody. That the report does not talk about the victims. In response the counsel for the accused submitted that what matters is a compelling reason for the court to deny an accused person the Constitutional right to bail. Analysis and Determination 24. I have considered the application for bail and the submissions. The issue for determination is whether there are compelling reasons to deny the accused person bail. Bail is a Constitutional right under the bill of rights and is provided under Article 49(i)(h) of the Constitution which provides as follows: “ An accused person has the right – to be released on bond or bail on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.” 25. This right is based on the right of an accused person to be presumed innocent until proven guilty which is a Constitutional right to fair trial. Article 50(2)(a) of the Constitution provides as follows: “ Every accused person has the right to a fair trial which includes the right – to be presumed innocent until the contrary is proved.” 26. The right t bail pending trial in capital offence was introduced by the Constitution of Kenya 2010 and for the first time after the promulgation of the Constitution on 27/08/2010 accused person facing capital offences now have a right to be released on bail pending trial unless there are compelling reasons for not releasing them on bail. 27. The Principal consideration in granting bail is whether the accused person will turn up for his trial if he is released on bail under Article 49(i)(h) of the Constitution (supra) bail is not an absolute right as it can be denied if there are compelling reasons not to grant an accused person bail. Where there are compelling reasons the court will deny bail, however if there are no compelling reasons the court will release the accused on reasonable conditions pending a change or trial. In Republic -vs- John Ochango (2021) eKLR the court stated that the paramount consideration in bail application is whether the accused is likely to attend trial or abscond. 28. The burden is on the prosecution to prove that the accused are likely to abscond. The prosecution relied on the affidavit of the investigating officer in opposing. The investigating officer was cross- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 5

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examined and he stated that he has nothing to show that the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th accused are a flight risk. He told the court that the 3rd accused, 7th accused and 6th accused were arrested within the Kitui Law Courts premises. 29. It is clear that the prosecution has not advanced any compelling reason to proof that the accused are likely to abscond if released on bail. The court has to consider whether there are other compelling reasons. An accused person is constitutionally entitled to bail unless compelling reasons are demonstrated. 30. The prosecution and the counsel for the family of the deceased have submitted that the court is functus official as it had given rulings denying the accused person bail. On the other hand, the defence is contending that as a prelude to the present application for bond, the accused person had told the court that circumstances have changed to warrant grant of bond/bail. The court called for a probation officer’s report and on request by some accused person directed that they be taken to hospital and reports be filed in court. It is then they filed this application which they submit that it must be looked at independently from any previous application for bond. The application stands on its own merits and is not a request for review of bond. The accused are therefore contending that this is an application based on changed circumstances which warrants consideration by this court. This kind of situation was considered in the case of Republic -vs- Diana Suleiman Said & Mahadi Swaleh Mahandi alias Jesus, Mombasa High Court Criminal Application No. 55/2014, Ruling where the Judge considered the test of changed circumstance and stated as follows: “ The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for refusal of bail or for review of terms there of the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice, not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstance changed, in such a manner as to favour his release on bail so may the prosecution urge that the situation has deteriorated to compel a consideration bail granted to the accused. There is nothing under Article 49(i)(h) (supra) or even Section 123 of the Criminal Procedure Code to suggest that the court becomes ‘functus officio’ or that the issue of bail becomes res judicata upon decision to grant or refuse bail. Article 49(i)(h) entrenches the right of an accused to be released on bail unless there are compelling reasons are demonstrated. If compelling reasons arise after the accused is released on bail but not yet released the court may review the matter on the basis of the compelling reasons proved. Section 123 of the Criminal Procedure Code makes the issue bail available at all times when it states that: When any arrested person is prepared at anytime while in custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail.” 31. The issue is whether circumstances have changed. The court denied the accused person bail on the ground that there were compelling reasons the 2nd & 3rd were denied bail on the ground that they were a flight risk owing to the number of serious cases facing them. The accused urged the court to note that the circumstances have changed. The court ordered that a social inquiry be filed. The social inquiry reports were filed and they show that indeed the circumstances have changed. Although the prosecution and the victim have disparaged the social inquiry reports on the basis that they have false hoods as those who were said to have been interviewed have sworn affidavits stated that they were not interviewed the investigating officer did admit that some funding which are relevant are indeed correct. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 6

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32. This relates to the finding by the probation officer that the situation on the ground has since changed and the area is relatively calm. This she attributed to the government interventions which have borne fruit and the communities are now living peacefully. The investigating officer sworn that there is peace. He confirmed that since April 2024, there has not been any incident. That there is a security committee chaired by the County Commissioner and affirmed that what the probation officer stated, that the security issue has been addressed is indeed correct. I agree that it was demonstrated that the situation has changed. The investigating officer agreed with the probation officer that calm was restored thro’ government intervention. There was a new set of circumstances and the accused properly moved the court for consideration of the fresh application for bail. 33. The prosecution has urged the court to consider that there is a likelihood of interference with witnesses. This was not demonstrated. The accused relied on Republic -vs- Robert Kipkorir Criminal Case No. E001/2020, High Court, the court stated that interference with witnesses would undermine the administration of justice. He also relies on R -vs- Fredrick Ole Loliman & 4 Others 2016 eKLR. 34. The court has to consider the allegation against the rights of the accused. It was the duty of the prosecution to demonstrate that the accused are likely to interfere with witnesses. Interference with witnesses is likely to affect the administration of justice as the case may collapse. The prosecution did not demonstrate the reality of such allegation as its witness, the investigating officer did not know where the accused persons reside and the likelihood of daily or possible contact with the witnesses. He could not tell whether or not where any of the accused would interfere with witnesses. He admitted that the accused remained within the community for months after the offence was committed. 35. It was his strong believe that witnesses would fear to come and testify once the accused are released. I find that this is not convincing. He did not indicate that he had seen the need of placing the witnesses under witness protection. Although, interference with witnesses is a grave matter which may lead to denial of bail to an accused person, such allegation must not be based on mere suspicion, there must be tangible evidence to prove that there is likelihood interference with witnesses. This has not been demonstrated. The counsel for the victims urged the court to consider the plight of victims. He further urged the court to find that right to bail is not absolute. The liberty of an individual is of paramount importance and where it has to be denied, it must be passed on substantial evidence. I find that the allegation of interference with witnesses has not been demonstrated. 36. The granting of bail is a matter of exercise of discretion which must be exercised judiciously. The court has to balance the rights of the accused to a fair trial and the right to bail and the societies interest. The accused has the right to be presumed innocent and be released on bail and the public interest to have the accused tried and if found guilty to be punished. In Eliplaz Riungu -vs- Republic (1996) KLR court emphasized the pubic interest in administration of justice as follows: “ We think the public interest demands that whatever goes on in a criminal trial should be in the interest of justice. And the Constitution being the mother of all laws clearly states that the accused must be afforded a fair haring within a reasonable time. Justice demands that the guilty be appropriately punished and the innocent be let free.” 37. The judiciary give guidelines in its Bail and Bond Policy which should guide the court and Police and the Judicial Officers in the administration of Bail and Bond. Section 123A of the Criminal Procedure Code gives the general considerations as follows: “ The nature of the offence, strength of the prosecution case character of the accused and the antecedents, failure of the accused to observe previous bail or bond, witness interference, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 7

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protection of the victim, relationship between the accused and potential witness(es), whether the accused is a child offender, whether the accused is a flight risk, if the accused is gainfully employed, public order, peace, security and whether there is need of protection of accused person.” 38. The guiding principles include, “ the right of accused to be presumed innocent, the accused’s right to liberty, the accused obligation to attend court, right to reasonable bail and bond terms, bail determination must balance the rights of the accused person and the interest of justice and consideration of the rights of the victims.” 39. The counsel for the victims submitted that some of the accused have pending cases in the sub-ordinate court and one involved a key witness. In the ruling by justice Limo dated 24/10/2024 he observed that 2nd & 3rd accused were facing other serious charges in other courts, 2nd accused Josphat Maingi Matiti facing two robbery with violence cases Cr. E947/2024 and another case Cr. Case 946/2024. That the 3rd accused Kasinga Ndungu is facing Arson and assault charges vide Criminal Case NO. 288/2024 and also faces a charge of grievous harm vide Criminal Case NO. E296/2024. 40. The Judge held that for 2nd and 3rd accused this court finds the reason and evidence tendered by the investigating officer compelling to deny them bond because they are a flight risk given the number of serious cases facing them. 41. The court is informed that the cases are still pending. The 2nd & 3rd accused now face a charge of murder. It is not clear whether the accused are out on bond in those cases. One of the guidelines under Section 123A of the Criminal Procedure Code which the court has to consider is whether the accused is a flight risk. The 2nd and 3rd accused are facing serious charges in addition to the present charges. They are likely to abscond if released on bail. Bail consideration for the 2nd and 3rd accused is dismissed as the prosecution has advanced compelling reasons to deny them bail. 42. As for the 1st, 4th, 5th, 6th, & 7th accused, I see no reason why I should deny them bail which as I have stated is a Constitutional right which granted in the light of the Constitutional right that an accused person is presumed innocent until proven guilty. I find no compelling reasons to deny them bail. 43. I therefore order that the 1st, 4th, 5th, 6th, & 7th accused shall each be released on a Bond of Kshs. 1,000,000/= plus one like surety each or in the alternative a Cash Bail of Kshs. 500,000/= each to appear or be remanded in custody. The sureties shall be approved by the Deputy Registrar of this court. DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF OCTOBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19501/eng@2025-10-07 8

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