Republic v Ishmael Warutere Juma Alias Dere & 1 other

persons where the incident took place. P.C. Sesi further deposes that the lives of the accused persons are in danger and if they are released they might face retaliatory attack from the deceased’s relatives. 5. In opposition to the Affidavit in Opposition to Bond, the accused persons filed Replying Affidavits dated 4th December 2024 and 31st January 2025 respectively. The accused persons aver that prior to their arrest, they were residing and working for gain at Kiandutu area in Kiambu county where they have rented a house there and can easily be traced. Further, they aver that they have family members who know them very well and who can be able to avail them at any time the court wishes. Thus, they state that they are not a flight risk. 6. The prosecution has filed an Affidavit of Compelling Reasons which labelled an Affidavit in Opposition to Bond, in respect of the 1st accused person, sworn on 10th November 2024 sworn by PC Harrison Sesi, the investigating officer in this case. He deposes that the 1st accused person is a flight risk as his identity is not yet known since at the time of arrest he had no identity card and further his fixed place of abode has not been established. 7. The deponent further states that the 1st accused person is likely to interfere with witnesses as they are known to him and reside within the same area of Kiandutu slums where the incident took place. Furthermore, the life of the 1st accused person is in danger and if he is released he might face retaliatory attack from the deceased’s relatives. 8. In opposition to the Affidavit in Opposition to Bond, the accused persons filed Replying Affidavits dated 4th December 2024 and 31st January 2025 respectively. The accused persons aver that prior to their arrest, they were residing and working for gain at Kiandutu area in Kiambu county where they have rented a house and can easily be traced. Further, they aver that they have family members who know them very well and who can be able to avail them at any time the court calls for their attendance. AAs such, it is not true to say that they are not a flight risk. 9. The accused persons state that they do not hold passports to facilitate travel outside the country and thus they shall be within the Republic of Kenya pending the hearing and determination of this case. 10. It is further deposed that the accused persons were arrested within their area of residence which is where the incident occurred and thus there is no reason for them to abscond after being released on bail as they are innocent men who wish to have this case finally heard and determined so that their names are cleared. 11. The accused persons aver that they do not know the prosecution witnesses who are mainly the family of the deceased’s family. It is further deposed that the accused persons do not know they do not have any dealings with the said witnesses. Neither do they have their contacts in order to get in touch with them. Further that there is no evidence presented by the prosecution that they shall interfere with the said witnesses. 12. The accused persons state that their lives are not in danger in any way noting that even before their arrest they continued to peacefully live within their neighbourhood and there was no person who had threatened or shown any sign of causing them harm. The accused persons thus argue the reasons given by the state to deny them bail are unsubstantiated and unfounded allegations and urges the court to dismiss the same. 13. Parties put in written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19792/eng@2025-02-20 2

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The Prosecution’s Submissions 14. 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 vs 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 persons shall interfere with the key prosecution witnesses as some of the said witnesses are known to them as they reside together in the same locality, Kiandutu slums where the incident occurred. The prosecution is apprehensive that should the accused persons be granted bond, they are likely to go back to where the key prosecution witnesses live and will interfere with them. This may prevent the witnesses not to freely give their evidence during hearing of the case. 15. The prosecution submits that the accused persons are a flight risk as their identity is not yet to be known since as the time of arrest they had no identity cards and also place of their fixed abode is still in doubt. This situation poses danger of absconding court if released on bond. The prosecution further submits that tension and hostility is still high at Kiandutu slums where the incident occurred and the locals of the village and family members of the victims may retaliate if the accused persons are released on bond. Thus, the accused persons’ lives 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 Persons’ Submissions 16. The accused persons rely on Article 49(1)(h) of the Constitution and the case of Murang’a Criminal Case No. 21 of 2015 Laban Mungai Chege & Another vs Republic (eKLR) and submits that the allegations advanced by the prosecution are baseless as they have not produced any evidence to show that they have interfered with any of the witnesses. Neither have the prosecution stated which of the witnesses is likely to be compromised by the intended release of the accused persons. It is further submitted it is clear from the pre-bail report that the victim’s family are strangers to them as they have never met them before they were arrested. Again, it was confirmed that they saw them for the first time on the date of arrest. The accused persons submit that they do not know the family of the victim and therefore there is no danger, real or otherwise that they can compromise them. 17. The accused persons submit that their place of residence is at Kiandutu slums and their family members and their place of residence have also been properly identified by the investigating officer as per the prebail report. The accused persons state that they have a permanent place of abode and they do not hold passports which could enable them escape from the country. 18. The accused persons submit that upon the occurrence of the incidence, they were readily available within Kiandutu. The fear of them being a flight risk is just a speculation. It is further submitted that even if the accused persons were to go to hiding, that cannot be a sufficient reason for them to be denied bail. 19. On the allegation that the accused persons lives are in danger as there exists hostility and tension at Kiandutu slums, the accused persons submit that no evidence has been provided to substantiate such claims. The accused persons submit that the incident occurred on 6th – 7th day of October 2024, they were arrested more than a week after the incident and during the week, they continued to reside openly and safely within Kiandutu. 20. The accused persons urge the court to grant them lenient bail/bond terms noting that they hail from a very humble background in the slums of Kiandutu. The court was urged to consider that bail should https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19792/eng@2025-02-20 3

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not be set too high to punish them due to their inability to meet the terms but the court should consider that the purpose of bail is to secure the attendance of accused persons to which they have committed to do faithfully. The Law Whether the reasons for opposing bail are merited in terms of Article 49(1)(h) of the Constitution. 21. 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. 22. The forgoing provision confirms that the right to bail is not absolute and that 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 exists compelling reasons to deny an accused person bail. 23. 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: 24. 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 ofience; 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 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 vs 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 vs 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19792/eng@2025-02-20 4

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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 ofiences; 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 ofience 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.” 25. The issue that arises herein is whether the grounds relied on by the prosecution are compelling enough to warrant denial of bail pending trial. 26. The prosecution has argued that the accused persons are a flight risk, that they shall interfere with the prosecution witnesses and that their safety is at stake. 27. In regard to the allegation that the accused persons are a flight risk, the prosecution did not demonstrate through credible evidence that such an allegation is likely to become a reality. The accused persons swore affidavits stating that they reside at Kiandutu area in Thika Kiambu County. The accused persons have further averred in their affidavits that they do not know the prosecution witnesses and neither do they know their residences. As such, it is highly unlikely that they would interfere with the witnesses. The prosecution has failed to produce any evidence to support the allegations of such interference. In the case of R vs 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 therefore not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution. 28. The prosecution in my view, has failed to present any cogent evidence to support the allegations in the affidavit of compelling reasons. Having carefully considered the reasons relied on in opposition of bail, I am of the considered view that the reasons given do not pass the test set out under Article 49(1)(h) of the Constitution. 29. Accordingly, I find view that the prosecution has not proved on a balance of probabilities that there are compelling reasons to warrant the denial of bail in respect of both accused persons. 30. Consequently, I hereby grant bail to the two accused persons in the following terms: a. That the accused persons shall be released on bond of KSh.1,000,000 with a surety of a like amount. b. That the accused persons shall not leave the jurisdiction of this court without its permission. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19792/eng@2025-02-20 5

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31. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 20TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19792/eng@2025-02-20 6

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