Republic Through DCI Starehe v Mohamed & 2 others

vi. Nature of offence and value of the money in question; vii. To obtain and analyze call data, SMS/ WhatsApp and other exhibits to corroborate the offence; viii. Forward phones to the forensic lab for analysis; ix. The lives of the Respondents are in danger considering that they are known to the complainant who has lost all their hardearned money; and x. The Respondents will interfere with the investigation. 3. Mr. Nassir, alongside Mr. Shaban and Mr. Guyo, appeared for the 2 nd Respondent. Mr. Nassir opposed the application. He submitted that the 2nd Respondent be admitted to reasonable bond/bail pending completion of the investigation. He contended that bond/bail is a constitutional right under Article 49(1)(h) of the Constitution of Kenya, 2010, which may be limited only where the prosecution demonstrates compelling reasons. Counsel relied on the case of Republic v Danson Mgunya & Another [2010] eKLR, where the Court emphasised that an accused person is entitled to bail unless compelling reasons are demonstrated, and that the seriousness of the offence, without more, is not sufficient to justify denial of bail. Further, the 2nd Respondent has a fixed and known place of abode at City Light Apartments, California, and is therefore not a flight risk. Moreover, the Investigating Officer has not produced any travel ticket or other evidence to substantiate the allegation that the 2nd Respondent is likely to abscond. Further, the 2nd Respondent is gainfully employed as a restaurant manager at KICC. He also relied on the case of Republic v Tobias Odhiambo Awuor [2025] KEHC 6047 (KLR). 4. Mr. Guyo submitted that the application is anchored on belief and suspicion rather than evidence. Neither the valuation report nor any call data records have been presented. Counsel cited the case of Republic v D White, [2023] KEHC 246 (KLR), Sagaray submitting that & 4 although Others alleged interference with a prosecution witness may constitute a compelling 2

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reason for denial of bail, the prosecution must place before the Court material demonstrating actual interference. A mere allegation of interference, without supporting evidence, is insufficient. He placed reliance on the case of Panju v R (1973). He further argued that the presumption of innocence cannot be dismissed by investigative theories. The remedy for incomplete investigations cannot be indefinite custody without basis; the law requires credible, verifiable information, not suspicion. 5. Mr. Shaban relied on Article 49 of the Constitution of Kenya, 2010, and the decision in Criminal Division Case No. E074 of 2021, R v Michael Oyomo, submitting that an arrested person has a constitutional right to be released on bail or bond on reasonable conditions pending a charge, unless the prosecution demonstrates compelling reasons to warrant continued detention. He further submitted that, to qualify as a compelling reason, it must be forceful and convincing. He continued to submit that the 2nd Respondent has a passport and the same can be deposited in Court. 6. Mr. Abdinasir appeared for the 1 st Respondent. Counsel urged the court to dismiss the application and admit the 1st Respondent to reasonable bond/bail terms. Counsel informed the court that the 1st Respondent’s place of residence is known to the Investigating Officer. Further, the Investigating Officer is already in possession of all the gadgets required to retrieve the call data hence, the presence of the 1st Respondent is not necessary. 7. Mr. Nyamanga appeared for the 3 rd Respondent. He sought leave to cross-examine the Investigating Officer, who confirmed he did not know the 3rd Respondent before the case and that he presented himself at the police station when he was summoned. Further, he confirmed that the complainants have no concerns with the 3 rd Respondent. 8. Counsel opposed the application for continued detention and submitted that the Respondents ought not to be detained based on speculation. It was Counsel’s contention that if the police intend to 3

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hold a person beyond 24 hours, they are required to make an application to the court. Such application must set out the nature of the offence, the nature of the evidence against the suspect, the inquiries that have been undertaken and the reasons necessitating the continued detention. 9. He also submitted that the Investigating Officer had not satisfactorily explained what investigations had been undertaken during the two days that the Respondents were in custody. 10. Counsel pointed out that the application invites the Court to infringe the rights of the Respondents. Additionally, the 3rd Respondent has a known place of residence in California, House No. 106. Counsel further submitted that the Investigating Officer was seeking a further 14 days to record statements, yet the recording of statements, in his view, is an exercise that should ordinarily take only a few hours. As regards the recovery of the gold, counsel submitted that the same could take several days, or may not be recovered at all, and therefore could not justify the continued detention of the Respondents. Counsel urged the Court to release the Respondents subject to conditions, including that they report to the police station daily at 8.00 a.m. He further submitted that, in the alternative, the Respondents be admitted to lenient and reasonable bond terms pending the completion of investigations. 11. The Prosecution Counsel, in her submissions, buttressed the contents of the application and submissions by the applicant. She therefore urged the Court to allow the application as prayed. Issue for determination 12. The sole issue for determination is whether the Applicant has established compelling reasons to warrant the detention of the Respondents. Analysis 13. This Court has carefully considered the application, supporting affidavit and the submissions of the respective parties. 4

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14. Section 36A of the CPC, as well as Article 49(1)(h) of the Constitution, guarantees an arrested person the right to be released on bond or bail on reasonable conditions unless there are compelling reasons to the contrary. The burden rests upon the prosecution to demonstrate such compelling reasons to warrant curtailment of liberty. 15. The court is also guided by section 123A of the Criminal Procedure Code and the Bail and Bond Policy Guidelines, 2015, which provides the factors to be considered in granting bail, which include the likelihood of absconding, interference with witnesses, protection of victims, preservation of public order, and the overall interests of justice. 16. The Court is guided by the decision of Republic v Joktan Mayende & 3 Others [2012] eKLR, the court held that compelling reasons must be forceful, convincing and sufficiently weighty to justify curtailment of the constitutional right to liberty. 17. Additonally, in the case of Sudi Oscar Kipchumba v Republic [2020] eKLR, the court (Ngugi J, as he then was) set out the parameters on what constitutes a compelling reason and further explained a double test rule as follows: “24. So, even while accepting that the text of Article 49(1)(f) may, in certain circumstances and contexts, comprehend a situation where a person is presented before a Court without being formally charged and is, thereby, informed of the reasons for his continued detention through the State’s Application to have him so held, the State must satisfy a double test: a. First, the State must persuade the Court that it is acting in absolute good faith and that the continued detention of the individual without a charge provisional or exceptional circumstances; otherwise is being preferred inevitable b. Second, whether due to existing the State must demonstrate that the continued detention of the individual without charge is the least restrictive action it can take in 5

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balancing the quadruple interests present in a potential criminal trial: the rights of the arrested individual; the public interest, order and security; the need to preserve the integrity of the administration of justice; and the interests of victims of crime where appropriate. By virtue of Articles 21(1) and 259 of the Constitution, the Court must act to aggrandize, not diminish, the personal liberties of arrested individuals in line with the other three interests. Differently put, the State must demonstrate that there are compelling reasons to deny pre-charge bail while balancing all factors within the complex permutation presented by these quadruple interests and without reifying or essentializing any.” 18. The Applicant advanced several grounds, which the Court now considers; Nature of the offence 19. The prosecution contends that the nature of the offence and value of the money involved is Kshs. 60,000,000/=, they militate against the release of the Respondents on bail. 20. In the case of Republic v Naftali Chege & 2 others [2018] KEHC 5331 (KLR) Ogola J, granting the accused bond/bail held that, “The offence of murder is a serious offence carrying a severe sentence if one is convicted. However, an accused person is presumed innocent until the contrary is proved. Based on the grounds adduced by the state, this court finds no valid reason to deny bail to the accused persons.” 21. Accordingly, guided by the above authority, this court finds that the nature of the offence and the value of money involved, without more, does not constitute a valid basis for denying the Respondents bond/bail. 6

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Whether the Respondents are likely to interfere with the o ngoing Investigations 22. The applicant submitted that investigations are still ongoing and that the continued detention of the Respondents is necessary to facilitate their completion. However, the Court notes that no satisfactory explanation was proffered as to why the investigations cannot be undertaken while the Respondents are at liberty. In Republic v Danson Mgunya & Another [2010] eKLR, the Court held that mere suspicion, however strong, cannot, in itself, justify the deprivation of a person’s liberty. 23. In the circumstances, I find that the applicant has failed to demonstrate that there exists a real likelihood that the Respondents, if released on bail, would interfere with or otherwise prejudice the ongoing investigations. Whether the Respondents are a flight risk. 24. The Applicant contends that the Respondents constitute a flight risk on the ground that they have no fixed abode. However, no evidence has been placed before the Court demonstrating any attempt by the Respondents to evade arrest or to flee the jurisdiction. Counsel for the 1st Respondent submitted that the 1st Respondent has a fixed and known place of residence which is within the knowledge of the Investigating Officer. Counsel for the 2 nd and 3rd Respondents similarly submitted that they have fixed and known places of abode in California. Additionally, the 3rd Respondent was summoned and he presented himself to the police station. This conduct, in my view, is inconsistent with the assertion that the Respondents are a flight risk. 25. Further, the concerns raised by the investigating officer that the accused persons may not be traced if released can be addressed through the provision of sureties and contact persons. Such measures would provide a means of ensuring the accused 7

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persons remain traceable while safeguarding their right to liberty pending the decision to charge. 26. I find that in the absence of evidence demonstrating a real risk of flight, the allegation remains speculative and unsupported by evidence. Safety of the Respondents 27. The Applicant in his supporting affidavit has stated that the lives of the Respondents are in danger considering that they are known to the complainant who has lost all their hard-earned money. 28. In Republic v Gibson Kiplangat Bett [2022] KEHC 728 (KLR) Gikonyo J stated that, “[13] I have lamented before; this ground is disturbing as it depicts a society of the ruffians or Mahocks whose talent was to use all manner of cruel and torturous methods to inflict as much pain as possible and to kill anyone found in their way. Such was a society without law and order. But the community herein is within the territorial jurisdiction of the Republic of Kenya- a nation governed by the rule of law and order under the Constitution of Kenya, 2010. I wonder where the said community derives its authority to harm or kill a suspect under trial… I therefore find that the argument that the accused be detained for his own safety and security is without legal or factual basis.” 29. This Court is not persuaded that the prosecution has established that the Respondents’ lives are in danger. Other grounds 30. The other investigative steps, namely interrogating and recording comprehensive statements from the Respondents, tracing and recovering the stolen gold and motor vehicle, and recording statements from the complainants, are matters capable of being undertaken without the continued deprivation of the Respondents’ liberty. No sufficient basis has been placed before the Court to 8

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demonstrate that the Respondents’ continued detention is necessary. 31. In light of the foregoing, I find that the Applicant has failed to demonstrate compelling reasons to warrant the detention of the Respondents for 14 days. Disposition 32. The application dated 27th July 2026 seeking orders to detain the Respondents for 14 days is hereby dismissed. 33. The Respondents shall be released on a bond of Kshs. 500,000/= each with one surety of a similar amount, or in the alternative, cash bail of Kshs. 250,000/= plus one contact person and required to adhere to the following conditions: i. The Respondents shall report to Ruaraka Police Station every Monday at 8:00 a.m until the expiry of 14 days. ii. The Respondents shall not interfere with witnesses or investigations in the matter. iii. The Respondents shall not travel outside the Republic of Kenya without prior written authority obtained from the court. iv. A violation of automatically any of the above discharge and cancel conditions the shall bond/bail hereinabove granted. 34. The matter shall be mentioned on 10th September 2026. 35. It is so ordered. DATED, SIGNED AND DELIVERED AT MAKADARA LAW COURTS THIS 27th DAY OF AUGUST 2026. CHEROTICH MARYLEEN RESIDENT MAGISTRATE In the Presence of: Mr. Abdinasir for the 1st Respondent 9

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Mr. Nassir, alongside Mr. Shaban and Mr. Guyo, for the 2nd Respondent Mr. Nyamanga for the 3rd Respondent Ms. Ayuma- Prosecutor Mr. Alvons- Court Assistant 10

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