Republic v Kelvin Musyoka Alias Tule

5. The state opposed his release on bail relying on two affidavits sworn by Number. 111462 P.C Jackson Musyoka of DCI Makadara. 6. Ms Njoroge prosecution counsel argued that the accused person is a flight risk because after he allegedly committed the first offence that he is charged with in Makadara he relocated from his known place of abode at Mukuru Kayaba to Fuata Nyayo slums to evade arrest. The accused person is also said not to be gainfully employed and has no known social and economic obligations tying him to a particular location. 7. Counsel for the prosecution further contended that the accused person has not told the court where his fixed abode is and the place he intends to reside in once released on bail. 8. The prosecution counsel urged the court to consider that there is a high likelihood that the accused would not return for trial and should therefore be held in custody until this matter is heard and determined. Counsel clarified to the court that the accused person was arrested in Machakos after the commission of the second offence and that is when he was charged with the Makadara Criminal Case No. E3413 of 2025 and the instant case. The Makadara file was still pending under investigation and that’s why he was charged after this criminal case had been initiated. 9. This court has considered the rival submissions by counsel for the accused and the prosecution. Under Article 49(1) (h) the constitution decrees that an accused person maybe released on bond or bail under reasonable conditions unless there are compelling reasons against the grant of bail. 10. The risk of flight is undeniably a compelling reason for denial of bail once the prosecution has sufficiently demonstrated that an accused person is likely to abscond the court would be within its discretion to decline the grant of bail. 11. The conduct of an accused person prior to the arrest and the prosecution is a relevant consideration for the court in deciding whether or not an accused person is a flight risk. The prosecution in this case has stated that the accused person has a pending manslaughter case in the Makadara court a fact that is not denied by the accused person and that the accused person committed the second offence after relocating from his usual abode. 12. In determining whether an accused person is likely to attend trial, courts consider several factors, with flight risk being paramount consideration. Where the risk of flight is established, the court should in the public interest and the interests of the administration of justice decline to grant bail. See Republic Vs. Ali & 2 Others (Criminal Case E002 of 2024) (2024 KEHC 14381) (KLR) 13. According to the Bail and Bond Policy Guidelines (2015) and Section 123A of the Criminal Procedure Code, other considerations include: a) The nature and seriousness of the offense, as a severe charge and b) Potential sentence can motivate the accused to abscond. g) The accused's history regarding compliance with previous bail terms. f) The likelihood of the accused interfering with witnesses or ongoing investigations. e) The potential danger the accused poses to public safety or victims if released. d) The accused's character, background, and ties to the community, such as having a fixed address, family, or employment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11728/eng@2026-02-23 2

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c) The strength of the evidence against the accused, as strong evidence may increase the temptation to flee. 14. The affidavits by the Investigating officer paint a picture of an accused person who in all probability is unlikely to return to court to face trial once released on bail. This court is by no means adjudging the guilt of the accused but based on the facts presented by the state the risk of flight is manifestly clear on the face of the information contained in the affidavits. The accused person faces a charge of manslaughter in Makadara court and that of murder in this court. 15. The two charges touch on the right to life under Article 26 of the Constitution and no doubt the offences are grave in nature. The gravity of the offence is similarly a matter that this court cannot ignore in determining this application. In Republic v Danson Mgunya & Another [2010] eKLR where M. K. Ibrahim J (as he then was) held thus;between capital or non-capital offence is one way crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the accused absconding. But the above is subject to qualification that there may be less serious offences in which the court may refuse bail, because of its nature.” “ As a matter of fact, all other criteria are parasitic on the omnibus criterion on availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the great incentive to jump bail although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the court than one charged with a misdemeanour, like affray. The distinction 16. This court is alive to the right of accused person to be presumed innocent. Every accused person shall be presumed innocent Article 50(2) of the Constitution. This is the primary rationale for the requirement of the Constitution that an arrested person has the right to be released on bail or bond. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. 17. However, as earlier on discussed in this ruling where compelling reasons such as the risk of flight, the gravity of the offence and negative antecedents of the accused are established such as in this case the court will be perfectly within the law to decline to grant the accused person bail until the matter is heard and determined. 18. Having carefully analyzed the information contained in the affidavits filed by the prosecution I have no hesitation in holding that the state has proved on a balance of probabilities that the accused person is unsuitable for release on bail pending trial. 19. It is the view of this court that he is a flight risk and a danger of society if released on bail pending this trial. Accordingly, the application for bail is dismissed and the accused person shall remain in custody until this matter is determined. 20. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY at NAIROBI this 23rd day of FEBRUARY, 2026. A. M. MUTETI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11728/eng@2026-02-23 3

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In the presence of: Habiba: Court Assistant Ms Dela for the State Murithi for Accused Accused: present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11728/eng@2026-02-23 4

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