Republic v Benjamin Nzomo Ndeto & 4 others

witnesses thereby compromising and jeopardizing the prosecution’s case. She produced an affidavit sworn on 20th May 2025 by No. 68925 Bonface Chebus, detailing the threats and names of witnesses threatened. She also produced the extract of an OB No.48/4/2025 obtained from the Machakos Police Station where the threats were purportedly reported. 4. Ms Kyania, learned Counsel for the accused persons, vehemently opposed the application by the state. She reminded the court that every accused person is presumed innocent until proved guilty. She pointed out that the Prosecution’s intention is to have the accused persons detained throughout the trial process. She contended that nothing had been placed before the court to confirm there were threats. Further that the defence was yet to be supplied with the witness statements and so there was no way of knowing who the witnesses are in order for the accused persons to threaten them. She urged this court to release the accused persons on bond noting that one of them is undergoing cancer treatment. Counsel asserted that the accused persons are ready and willing to abide by any condition that may be imposed by this court and prayed for reasonable bond terms. Counsel stated that arrests should have been made if indeed threats had been made. She urged this court to disregard those allegations. She also contended that the gravity of the charge and likelihood of conviction are no longer a criteria for bond in view of Article 49 of the Constitution. She argued that detention during trial is never the norm and averred that it goes against the right to a fair trial. She implored this court to grant bond to the accused persons. 5. Mr. Asiyo, learned Counsel for the family of the deceased, supported the application by the prosecution for reason that the affidavit indeed demonstrated that the sisters of the deceased were being threatened. 6. In reply Ms Nyauncho submitted that the threats to the witnesses are not mere allegations; that investigations are ongoing and that the investigating officer is waiting for data from Safaricom so that he can track the emissaries and have them charged. 7. Article 49 (2) of the Constitution states that every accused person has a right to be released on bond or bail, on reasonable conditions, pending charge or trial, unless there are compelling reasons not to be released. This in effect means that whereas bond is a right that right is not automatic in all cases. If there are compelling reasons the bond or bail can be withheld. 8. In this case the court is being asked to withhold bail/bond on the ground that the accused persons have through their proxies threatened the witnesses for the prosecution which is likely to jeopardize and compromise the prosecution’s case. I have seen the affidavit of Corporal Bonface Chebus dated 6th May, 2025. The same sets out the circumstances of the offence and then at paragraph 9 he deposes that the sisters of the deceased who were witnesses to the crime reported threats to the Machakos Police Station on 14th April, 2025. This was three days before the accused persons were arrested on 17th April, 2025. He also contends that the accused persons are likely to abscond in view of the magnitude of the charge facing them. It is instructive that Ms Nyauncho who has conduct of the case did not mention the issue of absconding instead she dwelt on the issue of interference with the witnesses. 9. The officer also uploaded another affidavit purportedly sworn on 20th May, 2025 where again he reiterates that on 14th April 2025, Beth Nisha Nzomo and Pamela Ndanu, sisters of the deceased, reported threats against themselves at Machakos Police Station. 10. From the two affidavits the purported threats took place before the accused persons were arrested because at paragraph 10 of the affidavit sworn on 6th May 2025, they were arrested on 17th April, 2025 and the threats were made on 14th April, 2025. The names of the persons who threatened the sisters of the deceased and their connection to the accused persons is not indicated and there is no https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19608/eng@2025-06-19 2

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mention whatsoever that the accused persons have since being arrested and charged, sent emissaries to threaten the witnesses in this case. In the premises, I agree with Counsel for the accused persons that the allegations of threats against the key witnesses in the prosecution’s case are unsubstantiated. It must however be clarified that any threat to witnesses, their associates or family members are not to be taken lightly and constitute a compelling reason to withhold or cancel bond granted to an accused person. 11. Be that as it may, as I have found in this case, that the allegations of threats have not been substantiated and bond being a right, this court shall release the accused persons on a bond of Kshs.500,000/- (five hundred thousand) each with two sureties of like amount, on condition that they shall stay away from the victim’s family members and their relatives during the trial. Should any threat be made to the victim’s family members, then the bond shall stand cancelled. Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 19TH DAY OF JUNE, 2025. E. N. MAINA JUDGE In the presence of: Ms Nyauncho for the state Mr. Asiyo for Nzavi for complainant Ms Evelyne Kyania for Mr. Musau for the accused persons All 5 Accused Persons appearing online from the respective prisons. Geoffrey - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19608/eng@2025-06-19 3

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