Republic v Stanley Kibue Njuguna

excessive violence, cruelty and suffering thus causing fear to any normal person who find himself or herself as a witness in the instant case. 5. The deponent states that she has known and interacted with both the accused person and the deceased for over three years prior to the occurrence of the incident. The deponent avers that the accused person is easily angered and reacts with intense emotions, verbal outbursts and physical display of anger and he once physically fought the deceased in a local hotel in Thika Town after finding her dancing with some male friends. 6. The deponent avers that the accused person knows her and where she works and lives and thus she feels insecure if he is released on bail or bond. 7. Parties put in written submissions. The Prosecution’s Submissions 8. The prosecution relies on Article 49(1)(h) of the Constitution, Section 123A of the Criminal Procedure Code, the Bail and Bond Policy Guidelines and the case of Michael Juma Oyamo & Another v Republic [2019] eKLR and submits that the prosecution has presented compelling reasons to warrant the denial of bail or bond to the accused persons. The prosecution submits that the accused person shall interfere with the key prosecution witnesses. The prosecution submits that from the affidavit of Eunice Mutwii Vaati, it is evident that she fears for her life and will not be able to testify freely if the accused person is released on bail or bond as the accused person is aggressive and is physically violent. Further, the mother of the deceased, Nancy Wambui also swore an affidavit expressing fear that her life would be in danger if the accused person is released on bond as she is the one who reported the matter at Kiandutu Police Station. The prosecution further argues that there is a possibility that the accused person may commit similar offences when out on bond. 9. The prosecution submits that the accused person is a flight risk as he does not have a fixed abode and was living in a rented house at Juja at the time of the incident. The prosecution further submits that tension and hostility is still high where the incident occurred and the locals of the village and the community may retaliate if the accused person is released on bond. Thus, the accused person’s life would be in danger if released on bail/bond and pursuant to Section 123(2)(b) of the Criminal Procedure Code and paragraph 4.9 of the Bail and Bond Policy Guidelines recognizes safety or protection of the accused as a compelling reason. The Accused Person’s Submissions 10. The accused person relies on Article 49(1)(h) and 50 of the Constitution and the case of Republic v Joktan Mayende & 3 Others [2001] eKLR and submits that the allegations advanced by the prosecution are baseless. The accused person submits that from the onset he demonstrated exemplary conduct as he voluntarily presented himself to the authorities when summoned and went ahead to report the victim disappearance even before being formally summoned. Further, upon his release in Thika Criminal Miscellaneous Application Number E052 of 2025, he availed himself at the DCI Offices when called upon to do so until his arrest in the matter. The accused person submits that his conduct shows that he respects authority, and is ready and willing to submit to the judicial process and is not a flight risk. 11. He Further submits that he has no prior record and thus deserving of the presumption of innocence until the case is determined. To support his contentions, the accused person relies on the case of Republic v Danson Mgunya & Another [2010] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19727/eng@2025-06-12 2

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12. The accused person submits that he has a fixed abode in Juja within Kiambu County and his parents and family are ready and willing to stand as sureties and ensure that he complies with the terms set by the court. 13. The accused person argues that the averments made by the prosecution are speculative and unsupported by tangible evidence and fail to meet the threshold of compelling reasons. He further states that the said averments were made in bad faith and are a means to discredit his reputation. Further, there is no formal complaint lodged and no specific witnesses have sworn an affidavit claiming direct intimidation by him. 14. It is further submited that he is gainfully employed by Jiamini CBO and is a primary bread winner to his family. Thus his continued detention would have adverse social and economic consequences. 15. Relying on the case of Republic v Daniel Musyoka Muasya [2010] eKLR, the accused person argues that courts must balance the rights of the accused with that of public interest in ensuring justice and safety. The Law Whether the Reasons for Opposing Bail are Merited in Terms of Article 49(1)(h) of the Constitution. 16. Article 49(1)(h) of the Constitution provides that:An accused 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. 17. It follows that the right to bail is not absolute and where there are compelling reasons, that right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. 18. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p 25 which sets out Judicial Policy on bail thus:“ The following procedures should apply to the bail hearing: a. The prosecution shall satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:- b. That the accused person is likely to fail to attend court proceedings; or c. That the accused person is likely to commit, or abet the commission of, serious offence; or d. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or e. That the accused person is likely to endanger the safety of victims, individuals or the public; or f. That the accused person is likely to interfere with witnesses or evidence; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19727/eng@2025-06-12 3

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19. g. That the accused person is likely to endanger national security; or h. That it is in the public interest to detain the accused person in custody.” In Republic v Fredrick Ole Leliman & 4 Others [2016] eKLR the court held that:“ The principles set out under the Bail and Bond Policy Guidelines I have been referred to are the same ones that were set out in the celebrated case of Ng’ang’a v Republic 1985 KLR 451 where Chesoni J, as he then was thus:“ The court in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (cap 75), should grant bail to an accused person unless it is shown by the prosecution that there are substantial grounds for believing that:a. The accused will fail to turn up at his trial or to surrender to custody; b. The accused may commit further offences; or c. He or she will obstruct the course of justice The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider; a. The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty; b. The strength of the prosecution case; c. The character and antecedents of the accused; d. The likelihood of the accused interfering with prosecution witnesses.” 20. The issue that arises is whether the reasons adduced by the prosecution are compelling so as to convince the court not grant bail pending trial. 21. The prosecution argued that the accused person is a flight risk, that he shall interfere with the prosecution witnesses and that his safety is at stake. 22. In regard to the allegation that the accused person is a flight risk, the prosecution did not demonstrate by way of evidence that such a thing was likely to happen. 23. The prosecution further argues that the accused person will interfere with witnesses if he is released on bail or bond. I have perused the record and noted that the prosecution filed two affidavits in support of these contentions. Both witnesses, the deceased’s mother and one Eunice Mutwii are apprehensive and fear for their lives as the accused person is known to be physically aggressive and violent. Thus the witnesses fear that they may not be free or availble to testify freely if the accused person is released on bail or bond. In the case of R v Joktan Mayende & 3 Others (2012) eKLR, the court in considering the scope of Article 49(1)(h) stated as follows:The phrase “compelling reasons” denote that the reasons are forceful and convincing as to make the court feel strongly that the accused should not be released on bond. Bail should https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19727/eng@2025-06-12 4

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therefore not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution. 24. The court has a duty of safeguarding the integrity of the trial by protecting witnesses who may be under threat of harm. It must be born in mind that the prosecution under the Witnesses Protection Act can protect witnesses in safe houses pending the hearing of a criminal case. 25. The prosecution in my view, in that respect has presented cogent evidence in two affidavits to support their allegations that the accused person may interfere with the witnesses. In the noble duty of the to protect the integrity of the evidence. I am convince that the prosecution have demonstrated that orders for release on bail should not be granted at the moment. 26. Consequently, I make orders in favour of the prosecution to the effect that the accused person shall remain in prison custody until the two (2) witnesses namely Eunice Mutwii Vaati and Nancy Wambui have testified. 27. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF JUNE, 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19727/eng@2025-06-12 5

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