Republic v Fidel Castro Odeyo & 1 other

5. According to Mr. Onduso the allegation by the state that the 1st accused was likely to interfere with witnesses was not backed by any evidence therefore the same remained a mere apprehension which the court should not attach weight to deny his client bail. 6. Further, counsel submitted that his client was not a flight a risk and that he would turn up for trial should he be released on bail. Counsel cited the case of Republic v Wanjiku & another (Criminal Case E002 of 2024) [2024] KEHC 4663 (KLR) 2 May 2024) (Ruling), where it was stated as follows; “In regard to interference with the key witness, the prosecution did not demonstrate by way of affidavits or other evidence that such a thing was likely to happen. Further, the allegation that the accused person’s safety is at risk is not supported by any evidence, which is yet another matter of speculation. 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” denotes 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.” 7. The prosecutions did not file any submissions and sought to rely on their affidavit in opposition to bond. The court received pre-bail reports on the 29th November 2024 in respect of the 1st accused and on 2nd December 2024 in respect for the 2nd accused. 8. In respect of the 1st accused Ms Salome Muthoni Probation officer recorded the following in her report: “ My Lordship, before the honorable court is a 22year -old, he is the first born. He pleads for reasonable bail/bond terms, his family is supportive and ready to respond to his bail/bond request should the court be inclined to admit him to bail/bond. The accused family are ready with surety to guarantee the accused release on bond. The accused family is pleading for his admission to bond/bail, as he is ailing and may require proper medical attention because of his condition, However, they are preview to the fact that the community is hostile to the accused if he returns, thus have made arrangements to have him reside with his paternal uncle Charles Kangode in Nairobi Kilimani area until the end of his trial for his safety. The accused likelihood to interfere with the witnesses some who are known to him is minimal as he will not be residing in that area as well as assurance from the family that they will monitor him closely while in their custody. One of the witnesses has also relocated to an unknown location which is not known to the accused as he was in custody. The accused is not a flight risk as he will be in a fixed abode within Nairobi with his uncle. The deceased family are still grieving the loss of their loved one. They are strongly opposed to the accused's admission to bail/bond pointing out that he is likely to interfere with witnesses. This fear is grounded from the fact that the some of the witnesses are known to the accused person. The investigation officer supports the notion that the bond terms be deferred for fear that the accused may interfere with the witnesses.’’(emphasis added) 9. The Probation Officer’s reports captured the concerns of the community where incident occurred and in this courts view the concern expressed by the state on the likelihood of interference with witnesses is not idle and as such this court must carefully balance the accused’s persons right to liberty with the duty of the state to ensure that justice is served to both the accused and the victim. 10. The likelihood to interfere with witnesses is a compelling reason to deny bail. Some of the witnesses in this matter are said to be persons known to the 1st accused, it would therefore be unsafe to release the accused person on bail at this stage before the concerned witnesses testify. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11554/eng@2026-01-14 2

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11. Accordingly, this court while appreciating that liberty of the accused person is precious, will withhold the release of the accused persons on bail until such time that the witnesses likely to be interfered with will have testified. The accused person shall remain at liberty to approach this court for review of bail should the state delay in the presentation of the concerned witnesses to give evidence. 12. The investigating officer should take note of the fact that the liberty of the two accused persons is curtailed courtesy of the need to ensure that the justice of the case is not compromised otherwise any delay in presenting the witnesses shall not be countenanced by this court. 13. This court therefore directs that hearing dates be fixed in the case and the prosecution provides a list of the witnesses that they consider to be likely to be interfered with who shall be heard on a priority basis. 14. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JANUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Ms Njoroge for state Onduso for 1st Accused Ms Mwangi for 2nd Accused Accused: 1st & 2nd present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11554/eng@2026-01-14 3

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