Republic v Grace Mwangi & 2 others

police visited the scene and recovered the suspected murder weapon at the entrance of their dwelling house; and, the Co-Accused, neighbours, were arrested through assistance of sniffer dogs. That the family of the deceased reasonably fears that the release of the Accused may significantly undermine the administration of justice and frustrate prosecution through intimidation and possible threats to witnesses. 4. That the death of the deceased sparked tension in the area, the ground is hostile such that there is a possibility of the Accused being harmed by being subjected to mob injustice if released on bond; the 4th suspect fled hence the Accused may also flee. And, that seriousness of the offence be considered. 5. Patrick Maina Kingori, a biological brother to the deceased and secondary victim deposed an affidavit stating that there exist compelling reasons that warrant the Accused persons’ continued detention pending trial. That one of the accused persons has already absconded and remains untraceable which has caused great concern and apprehension to the family of the deceased which demonstrates a real and credible risk that remaining Accused persons may equally abscond and evade the course of justice if released on bail. 6. That the 1st Accused is the spouse of the deceased and was closely associated with the deceased prior to his death hence well known to several members of the family of the deceased and close associates who are potential witnesses in the case therefore if released on bail she may HCCR E003 OF 2026 (RUL.) Page 2 of 14

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interfere with, intimidate, influence or otherwise compromise such witnesses directly or indirectly thereby undermining the cause of justice. 7. Further, that the release of the Accused at this stage may grant the opportunity to tamper with evidence, influence investigations or otherwise obstruct the course of justice. That the death of the deceased has generated significant tension, grief and emotional turmoil within the family and wider community and the release of the Accused at this stage is likely to aggravate the already volatile situation, and expose the 1st Accused to hostility, confrontation or possible harm from members of the public given the prevailing emotion surrounding the death of the deceased. 8. Relying on Article 49 and 50 of the Constitution, learned Defence Counsel Mr. Jeremiah Rioba for the 1 st Accused submits that the Accused has been in custody for 5 months, she has a permanent residence, she has never jumped bail and has been actively cooperating with the police and has never interfered with the police. He dismissed the allegation that the 1st Accused will be attacked by mob-justice. That she suffers from arthritis a disease that require medical attention. Reliance is placed on the case of Michael Juma Oyamo & Another v Republic [2019] KECA 953(KLR) and Repubulic v Thomas Kipkemoi Kipkorir [2012] KEHC 2541(KLR). 9. Learned Defence Counsel Ms. Muigai for the 2 nd and 3rd Accused submits that they are not a flight risk and relying on such a reason to deny them bail will amount to punishment. That the Accused have cooperated with the HCCR E003 OF 2026 (RUL.) Page 3 of 14

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police, honoured summons, even during inquiry. That no evidence has been presented to show that they will tamper with investigations and influence witnesses. On the question of their security it is urged that they have never been attacked. That they have strong ties with the community and have residences within Sipili area where their families reside. 10. The State through learned Prosecution Counsel, Ms. Mumbe opposed release of the Accused on bond. She urged that Article 49(1)(h) of the Constitution that grants rights of an accused to be released on bond is not applicable where there are compelling reasons. That the Accused are charged with a capital offence of murder which attracts a severe sentence that increases the likelihood of absconding 11. That witnesses are relatives, neighbours to the Accused as well as deceased who might be intimidated or influenced which will be prejudicial to the integrity of the trial. That there is also the question of existence of hostility within the community and emotions are still high. That releasing the Accused at this juncture may expose them to mob injustice and disturb public order. 12. Pursuant to the provisions of Section 9 and 10 of the Victim Protection Act, this court sought the input of the Probation Officer who filed a pre-bail report that the Prosecution also relied on. The 1 st Accused is 67 years old, a mother of four adult children who indicated that their primary concern is to establish the truth regarding who was responsible for their father’s death and the motive HCCR E003 OF 2026 (RUL.) Page 4 of 14

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behind it. The uncertainty surrounding the killing has left them feeling insecure and unsettled. That they have allegedly faced stigmatization from within the paternal extended family. 13. The deceased siblings expressed profound grief and anger following the death of the deceased. They seek justice for their kin and express bitterness over the circumstances surrounding his death. They prefer that she remains in custody pending determination of the case. That should the Accused be released to the community she may face hostility from members of the community who are angered by the incident raising fears of mob justice. 14. On the part the community, it was established that the Accused has long standing roots within the community. She is reportedly a member of local women welfare groups and actively participates in church activities which reflects a level of social integration and community involvement. However, the area chief described her as insincere in her engagement and interaction within the community. 15. With regard to the 2nd Accused, aged 45 years, the secondary victim, siblings of the deceased are against his release on bond citing flight risk and safety concerns. They say the Accused was away for several months and upon inquiry, they discovered that he had gone to live in Narok and only returned on learning that the case had ended. They are afraid that if released they may be harmed. And, if released, he will disappear. 16. The 2nd Accused is known to the community since birth. Local Administration do not view him as a threat to HCCR E003 OF 2026 (RUL.) Page 5 of 14

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public safety or his life to be in danger as a result of the offence. And, that when summoned he cooperated with the DCI during investigations, he was released and he answered to the summons and directives from the DCI office. His immediate neighbours did not oppose his release on bond. But, some villagers concurred with the siblings of the deceased hence perceive him as a main suspect and are bitter, therefore oppose his release on bond. 17. For the 3rd Accused, aged 48 years, the deceased siblings do not support his release on bail, for fear that he may be a flight risk as he is relatively new in the area although he stays with his father. The area administrator does not know him very well as he is stated to have stayed in Mombasa most of the time, but they know his parents very well. A few neighbours vouched for him stating that he was well behaved and they have not heard of any criminal behavior concerning him. 18. All Probation Officers who conducted the inquiries, left it to the court to determine the matter according to its discretion. 19. I have considered rival submissions, both oral and written, as well as the Pre-bail Reports. I note that Counsel for the 1st Accused took issue with the Probation Officer’s Report and had to cross examine the Probation Officer who carried out the social inquiry. It is worth noting that the purpose of a pre-bail report is to assist the court reach an informed decision that is rational but it does not bind the HCCR E003 OF 2026 (RUL.) Page 6 of 14

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court, since the court acts independently weighing the report against arguments of the prosecution and defence. 20. It is an accused person’s right to be released on bond pending trial unless circumstances exist that require his incarceration during trial. Article 49(1)(h) of the Constitution provides thus; (1) An arrested 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. 21. Although the Constitution and statute are silent on what exactly the circumstances that amount to convincing or persuasive enough to make the court deny the Accused bail; In Republic v Joktan Mayende & 3 Others [2012] KEHC 5551 (KLR) the court stated that; “...the phrase compelling denote reasons that are reasons would forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.” 22. The Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25 sets applicable procedure to the question of bail. It provides for circumstances under which an accused person may be denied bail thus; HCCR E003 OF 2026 (RUL.) Page 7 of 14

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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 denial of reasons bail. The that justify Prosecution the 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, a 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 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.” HCCR E003 OF 2026 (RUL.) Page 8 of 14

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23. Section 123A of the Criminal Procedure Code provides; (1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular— (a)the nature or seriousness of the offence; (b)the character, antecedents, associations and community ties of the accused person; (c)the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and; (d)the strength of the evidence of his having committed the offence; (2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person— (a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody; HCCR E003 OF 2026 (RUL.) Page 9 of 14

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(b)should be kept in custody for his own protection. 24. All these culminate into the fact that an accused can only be denied bail if the State/Prosecution proves existence of compelling reasons. In Ng’ang’a v Republic [1985] KLR 451 Chesoni J. (as he then was) stated thus; “1. 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 consider the following factors: a. In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that: i. The accused will fail to turn up at his trial or to surrender to custody; ii. The accused may commit further offences; or iii. He will obstruct the course of justice.” 25. In the instant case the Accused are stated to be likely to jump bail following seriousness of the information presented; that they may interfere and/or intimidate HCCR E003 OF 2026 (RUL.) Page 10 of 14

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secondary victims, in particular, siblings of the deceased and their safety is at stake. 26. On the question of the strength of the case, there is no doubt, murder is a serious offence which attracts up to death penalty if guilty. The constitution is however clear on the presumption of innocence, hence the question of severity of the charge must be considered alongside other factors. In particular what has been pointed out is evidence that the deceased was found murdered on a bed that he had shared with the 1st Accused, early morning and for her co-Accused sniffer dogs led to their arrest. This is evidence that is yet to be subjected to examination in chief and tested in cross-examination. Therefore, the same cannot be dismissed as constituting evidence favourable to denial of release of the accused on bail. 27. Of paramount importance when considering whether or not to grant bail is the question whether the accused will turn up for trial. The instant charge being murder has serious consequences in the event of conviction. This may tempt the accused to abscond, but, the prosecution must demonstrate existence of substantial reasons why bail should not be granted. The State and the secondary victims are apprehensive that the Accused may abscond from the jurisdiction of the court so as to escape the serious charges. The offence was committed in 2023, reports filed indicate that the Accused never found themselves in conflict with law previously. They turned up as required by the DCI in the course of investigations and did not leave the area of residence until more than two years later when the HCCR E003 OF 2026 (RUL.) Page 11 of 14

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investigations were re-opened. They have fixed places of abode. No cogent evidence has been placed before this court that they will evade trial. 28. It is alleged that there is a likelihood of the Accused persons interfering and/or intimidating witnesses, if that be the case then there is a substantial and credible risk incase they are released. It is for this reason that there should be cogent evidence of the likelihood of existence of threats to that effect. For influencing witnesses obstructs the cause of justice. 29. Notably, the Prosecution did not place before the court evidence of the previous conduct of the Accused where they did tamper and threaten witnesses which is likely to recur. Nothing has been suggested regarding complaints of reports having been made by witnesses who recorded statements in 2023. The Investigating Officer has not alluded to any of the Accused having attempted to approach any of the witnesses during investigation, an approach that would be viewed as improper. 30. Article 50(2)(a) of the Constitution provides; (2) Every accused person has the right to a fair trial, which includes the right— a) to be presumed innocent until the contrary is proved; 31. An accused person is guaranteed the right to be presumed innocent until found guilty by a court of law. It would be wrong for an individual to be subjected to pre- HCCR E003 OF 2026 (RUL.) Page 12 of 14

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trial detention that is why there is need to balance the right of the accused person and that of the victim. 32. It is alleged that the Accused persons’ safety is at stake. The allegation is that they may be subjected to mob justice. From the reports filed by the Probation Officers, the narrative largely comes from the siblings of the deceased. Some community members do not view them as a threat. It would be the court’s utmost interest to ensure the Accused’s safety if there is hostility by the community, to do so there should be cogent evidence that their lives are at risk. What is apparent is that secondary victims are grieving because of what transpired and they seek justice. The siblings would wish to have the Accused found guilty while the children would want the truth unraveled, a rift between the extended and nuclear family being apparent, but, there is nothing cogent to suggest that the Accused persons lives may be in danger if released on bond, since they were at liberty for three years after the eventuality and nothing happened to them. 33. The upshot of the above is that the Prosecution has not demonstrated forceful or convincing reasons requiring the Accused persons being denied bail. Therefore, I make orders thus: a) Each Accused is granted bond of Kenya Shillings Two Million (Ksh. 2,000,0000/-) with a surety in a like sum. HCCR E003 OF 2026 (RUL.) Page 13 of 14

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b) Upon release, contacting they will be barred from witnesses who have recorded statements. 34. It is so ordered. Dated, signed and delivered virtually this 19th day of May, 2026. …………………… L.N. MUTENDE JUDGE HCCR E003 OF 2026 (RUL.) Page 14 of 14

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