Republic v Kithuka & 2 others

road to Havana Bar where he met the 2nd accused, who he again met on 16th February 2025at the same club from where they left in a Uber to the House of the first accused at Pipeline and after ten minutes they were joined by the 1st and the 3rd accused together with one Samuel Musembi who has since died and started to demand money from the deceased , who refused to comply leading the accused person to lock him in the house, who later gave out his debit and credit cards and his pin numbers, with which the 3rd accused used to withdraw some money, only to come back demanding the pin numbers for the other cards and they continued harassing the deceased who died in the process. 5. It was deposed that the 1 st accused then bought two manila ropes and two green sacks which they used to stash the body in for disposal using the motor vehicle provided by the 2nd accused. The deceased body was on 21st February 2025 the body of the deceased was discovered in Makongo forest along Machakos Wote Road stuffed in a sack with pineapples. 6. That the accused persons having used the deceased ATM cards to with draw monies from his account in Mombasa Voi and Nairobi went into hiding to evade arrest , with the 2nd accused being arrested in Kwale County following a series of robbery with violence within Mombasa and Kwale Counties , while the third accused made several attempts to cross into Tanzania on 8th July 2025 from Lunga Lunga boarder where he fled from leaving his passport and on 2

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15th April 2026 at Namanga boarder point using temporary permit. 7. It was contended that the accused persons were therefore flight risk. 8. In compliance with the provisions of the Victims Protection Act , the family of the deceased filed an affidavit opposing bond through SIMON FARRAR the wife who is residing in the United Kingdom in which she deposed that the deceased travelled to Kenya on work assignment as an expert in Credit Scoring Analytics and checked in at JW Marriot Hotel alone on 15th February 2025 and was last seen leaving the hotel on the night of 16 th February 2025 and that she believes that if released on bond the accused persons may attempt to intimidate , threaten or otherwise interfere with prosecution witnesses. 9. It was deposed further that she had reasonable grounds to believe that if released on bond the accused persons may attempt to intimidate , threaten or otherwise contact her or members of her family, given the readily available technology , which would cause additional distress and further that the accused persons may abscond and evade the jurisdiction of the court given their conduct following the recovery of the body of the deceased , when they all went into hiding. 10. She further contended that the release of the accused persons who are charged with the brutal murder of a British national would send am alarming signal as to the safety and security of persons within this jurisdiction , 3

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thus public interest strongly militates in favour of the accused being in custody and that further the nature and the circumstances of the offence indicates that the accused together with others not before the court acted jointly in a coordinated manner ,thereby suggesting premeditation organization , which heightens the risk posed by the accused persons should they be released into the public. 11. In response to the application the 2 nd accused Moses Limari David swore a replying affidavit in which he in which he denied meeting the deceased and or in the alternative if he met him then it was in the normal course of walking or business of buying items without any date with the deceased at Havana Bar as alleged and never noticed that he was the one who later died. 12. He deposed that he was a businessman importing and selling tomatoes and onions from Tanzania and that at the time of his arrest he was in his business ventures as such. 13. The 3rd accused person filed a replying affidavit in which he deposed that he had never met the deceased in his lifetime and had no prior relationship and or dealing with the same, neither was he the owner of motor vehicle registration number KCS 578W used to ferry the body of the deceased . 14. He deposed that he was not a flight risk as he had a known place of residence at Ideal Apartments , Diani in Kwale County , where he operates a tour and travel 4

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business and from where he was arrested , he was therefore not in hiding as alleged by the investigating officer, having not been summoned or called upon by the officers from DCI to record any statement and or to assist with investigations. 15. He stated that the other matter against him is pending before a court of competent jurisdiction and was still presumed innocent, having been admitted to bond, whose terms he continues to comply with and should therefore not be used to as a ground for denial of bond. 16. It was deposed further that the prosecution had failed to demonstrate any likelihood of witness interference, the allegations which were speculative as the deceased family members were residing outside the country had not filed any affidavit alleging intimidation, threats or interference, as they were unknown to him. 17. It was stated that he was currently suffering ill health and required regular medical attention which he cannot access while in remand custody, which had led to detrition of the same. 18. The court called for pre-bail reports , on the 2 nd accused it was stated that the same was engaged in small scale business of selling onions as at the time of his arrest, while residing within the pipeline area. He has a close social tie with his family members, who were supportive and willing to post bond and ensure that the same attend court when required . 5

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19. elder On the community ties , the chief and the village at Pipeline stated that they did not know the accused personally due to the informal nature of the area, while the assistant chief and the village elder in his rural home described him as of good morals with no known history of misconduct and did not object to his release on bond. The investigating officer, stated that two additional suspects believed to had been involved in the offence were at large and heavily armed , and therefore if the accuse ware released on bond his life might be in danger 20. On the victims concerns, it was stated that the same was aged 58 years , holding senior leadership role at Fair Isaac Corporation (FICO) in Britain and as a result of his death the family and his partner had experience profound trauma and economic hardship and that his mother who has dementia , stopped speaking soon after hearing the news of his death. It was their view that if released on bond the accused persons were likely to interfere with witnesses and or the subsequent arrest of other suspects . 21. In conclusion it was stated that the accused is single without children and that the same was willing to relocate to his rural home 22. On the third accused, it was stated that his father is a Nyumba Kumi manager of Miathena Angelo area and was willing to stand surety. The accused as at the time of arrest was engaged in sale of farm produce in Meru kitui and Nairobi , with a fixed abode in Meru where his first 6

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wife resides , while his second wife resides in Utawala Benedicta area. He is currently out on bond for the offence of stealing. 23. On the community ties, the family is well known to their rural Chief, which he constantly visits and therefore had no objection to grant of bond. DETERMINATION 24. Bond is now a constitutional right of every accused person which can only be denied where there are compelling reasons advance by the prosecution to the satisfaction of the court on a balance of probability. What constitute compelling reasons are now settled through a sea of judicial pronouncement including the Judiciary Bond and Bail Policy Guidelines see the Court of Appeal decision in Kamau versus Republic [2023] KECA922(KLR) thus ’13. We have carefully considered the application, submissions by Counsel and the various authorities cited. Article 49 (1)(h) of the Constituion provides that an arrested person has a right ‘to be released on bond or bail, on reasoable conditions pending a charge or trial, unless there are compelling reasons not to be released.’ It is therefore clear that such Constitutional right can only be limited if the prosecutioln satisfies the trial court that there are compelling grounds to warrant its denial on an accused person. What amounts to compelling reasons has 7

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not defined in the Constitution or in any written law. The Judiciary has however come up with Bail policy Guidelines to fill the gap and to guide the courts in determining applications for bail. Section 4.9 of the Bail Policy Guidelines lists what constitutes compelling reasons are being:(i) The nature of the charge or offence and the seriousness of the punishment to be meted out if the accused is found guilty. (ii) The strength of the prosecution case. (iii) The character and antecedents of the accused person (iv) The failure of the accused person to observe bail or bond terms. (v) The likelihood of the interfering with witnesses. (vi) The need to protect the victim or victims of the crime. (vii) The relationship between the accused person and the potential witnesses. (viii) The best interest of child offenders. (ix) The accused person being a flight risk. (x) Whether the accused person is gainfully employed. (xi) Public order, peace and security. (xii) Protection of the accused persons. 14. Further Section 123 (A) (1) of the Criminal Procedure Code which is to be read with Section 123 thereof provides as follows:- ‘123(A) Subject to Article 49 (1)(h) of the Constitution and notwithstanding Section 123, 8

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in making a decision on bail and bond, the court shall have regard to all the relevant circumstances and in particular:(a) the nature and seriousness of the offence. (b) the character, antecents, associations and community ties of the accused persons. (c) the defendant’s record in respect of the fulfilment of obligations under previous grant of bail and (d) the strength of the evidence of having committed the offence.’ Subsection (2) thereof stipulates that a person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person:(a) Has previouslly been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likelly that he would fail to surrender to custody. (b) Should be kept in custody for his own protection.’ 25. In this matter the accused persons though considered innocent at this time of proceedings, faces a charge of murder with an element of transnational angle based on the information placed before the court through the affidavit opposing bail and the victim’s affidavit. 26. There is also an allegation by the prosecution, which has not been controverted by the accused persons, that one of the persons who was allegedly with them as at the time of the alleged commission of the offence died in unexplained circumstances and therefore the issue of witness interference is not farfetched. 9

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27. The circumstances of the arrest of the accused persons herein leads the court to believe that the same are likely flight risk as one of the accused persons was arrested at the border between Kenya and Tanzania leading the court to believe that should they be granted bond, the temptation of fleeing from the jurisdiction of the court will be great thereby compromising the trial herein. 28. There is also the allegation by the prosecution of the possibility of a syndicate luring foreigner into the country for the purposes of robbing them, which indicates that there is a transnational element to the offence herein, which to my mind is a compelling reason for the denial of bond to the accused persons herein at this stage of the trial. 29. On the second accused contention that his health has been compromised , there is no evidence tendered to show that the same cannot to managed at the prison health facilities and or through referral if need be. 30. The circumstances under which the accused persons were arrested further supports the prosecution case that the same are likely flight risk should they be released on bond. 31. I am therefore satisfied that the prosecution has provided adequate and sufficient compelling reasons to enable the court deny the accused persons bond at this stage which I hereby do. The accused persons shall therefore remain in remand custody until the final 10

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determination of the cause unless otherwise reviewed by the court. 32. On the application by the first accused for review , save for the fact that the two other accused persons have subsequently been charged together with him, there has not been any fundamental change of circumstance and therefore find no merit on his application for review, which I hereby dismiss . 33. And it is ordered. DATED SIGNED AND DELIVERED THIS 17TH DAY OF SEPTEMBER 2O26 J. WAKIAGA JUDGE In the presence of: …………………………for the State ………………………… Irene – Court Assistant 11

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