Njagi v Republic (Criminal Case E009 of 2025) [2025] KEHC 17641 (KLR) (26 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 17641 (KLR)
Republic of Kenya
Criminal Case E009 of 2025
RM Mwongo, J
November 26, 2025
Between
Patrick Mwaniki Njagi
Accused
and
Republic
Prosecution
Ruling
Background
1.The applicant is facing the charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of 17th/18th September 2024 at Kiritiri town, Mbeere South sub-county within Embu County, the accused, jointly with others not before court, murdered Paul Musembi Kioko. The accused pleaded not guilty and the plea was duly entered.
The Application and Responses
2.The applicant applied to be released on reasonable bail/bond terms pending hearing.
3.The respondent, through CI Janet Akelo filed an affidavit opposing the bail application. In it she stated that the accused committed the offence alongside his siblings and there were some eye witnesses who include the accused’s roommate and the deceased’s wife.
4.That the siblings of the accused have constantly been intimidating the eye witness until one of them ran away after being summoned by police during investigations. She produced copies of OB showing that the wife of the deceased reported assault and threats by the accused’s family members who had plotted to kill her so that she does not testify. On this basis, the respondent urged the court not to release the accused on bail because he is a threat to the witnesses.
Pre-bail Probation Officer’s Report
5.According to the probation officer’s report, the accused is a repeat offender, having previously been convicted and sentenced for stealing. The report also reveals that the victim’s wife has suffered intimidation from the accused and his family on 2 occasions and she reported the incidents to the police. The local administration knows about the accused’s criminal trends and they said that he is a bully. They stated that the accused’s behavior has affected his family and his children’s relations with other people in the village.
6.The local administration is also aware that the victim’s wife has been threatened by the accused’s siblings, and, on this basis, they recommended heightened bond terms to deter the accused and his family from accessing the victim’s family. The family of the accused recommended favourable bond terms and they already have somebody to stand surety for the accused in any event. Ultimately, the report recommended that the accused person may be released on bond terms with a trusted surety.
Issue for Determination
7.The issue for determination is whether the applicant should be released on bail/bond.
Analysis and Determination
8.An accused person is presumed innocent until proven guilty. It is on this basis that applications for bail are founded. The Judiciary Bail and Bond Policy Guidelines recommend that:
9.However, the right to bail is not without limits as provided under Article 49(1)(h) of the Constitution which provides for the right to bail pending trial as follows:
10.The court may deny bail under certain circumstances and where the court is satisfied that there are compelling reasons to deny bail. Section 123A of the Criminal Procedure Code provides instances where bail may not be granted, as follows:
11.The Bail and Bond Policy Guidelines provide guidance on factors the court can consider in assessing whether or not to grant bail. They are, inter alia;a.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.b.The strength of the prosecution case.c.The character and antecedents of the accused person.d.The failure of the accused person to observe bail or bond terms.e.The likelihood of interfering with witnesses.f.The need to protect the victim or victims of the crime.g.The relationship between the accused person and the potential witnesses.h.The best interest of child offenders.i.The accused person is a flight risk.j.Whether the accused person is gainfully employed.k.Public order, peace and security.l.Protection of the accused persons.
12.With the foregoing in mind, it is noted that the accused has been previously convicted and sentenced by another court. According to the probation officer’s report, the accused is a bully who has gone as far as threatening the victim’s wife, who is a prosecution witness. It appears from the report that the accused, through his siblings, is still actively threatening the witnesses who are scampering for their safety. The accused and victim’s families live in close proximity to each other.
13.This speaks to his character and likelihood of interfering with witnesses, as factors to be considered by the court. The investigating officer’s apprehension that the applicant will interfere with witnesses, cannot be ignored. In fact, it may well be a compelling reason to deny bail pending trial. The respondent stated that it has already lost one eye witness who walked out of an investigation meeting to receive a phone call and he has never been seen since. The victim’s wife is also an eye witness who currently fears for her life.
14.A compelling reason is not merely an allegation. In the case of Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR) the Court of Appeal adopted the meaning of the phrase “compelling reasons” as was stated in the case of R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 where the Learned Judge held as thus; -
15.Previous courts have addressed themselves on the issue of whether interference with witnesses is a compelling ground to deny bail. In the case of Republic v. Gerald Mutuku Nyalita & Another (2015) eKLR it held that; -
16.Similarly, in the case of Republic v Patrick Ntarangwi [2020] KEHC 2140 (KLR), the court held that:
Disposition
17.In light of the foregoing discussion, it is my view that to grant bail to the applicant could possibly lead to witness interference. The court has also considered the fact that the applicant has previously been convicted and sentenced for stealing. In the circumstances, I am persuaded to decline the bail application at this time.
18.The court will consider release of the applicant on bail/bond terms at a later date when the key witnesses have already testified. This is in line with the Bail and Bond Policy Guidelines, thus:
19.The bail application is therefore dismissed and a fresh application may be considered after the testimony of the key witnesses.
20.Orders accordingly.
DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 26TH DAY OF NOVEMBER, 2025...........................R. MWONGOJUDGEDelivered in the presence of:Accused present in CourtChepkorir for AccusedMs. Nyika for the RespondentFrancis Munyao - Court Assistant