Eight students facing murder charges over the Utumishi Girls Academy dormitory fire will remain in custody after the High Court found that releasing them could put their safety at risk and create problems for witnesses in the case.
Justice Diana Kavedza-Mochache on Monday rejected their application for bond after considering reports showing that tensions surrounding the deaths of 16 students remain high within the school and the neighbouring community.
The judge said the court had to balance the minors' right to liberty with the need to protect them, witnesses and other vulnerable people while ensuring that the murder trial proceeds without interference.
"It is evident that the proceedings concern 16 counts of murder arising from the death of schoolchildren. Both the victims and the subjects are children. The reports disclose continued bitterness, mistrust, fear and apprehension within the school and surrounding community."
Evidence placed before the court showed that the eight students had themselves faced difficulties while in remand, including allegations of bullying, assault and discrimination.
Some also experienced online harassment after they were allowed to use mobile phones.
The judge said those incidents were important in determining whether returning the minors to the environment linked to the hostility would expose them to further danger.
"These circumstances are relevant in assessing the risk to their safety should they be released into the same environment from which the hostility arises," the court said.
Justice Kavedza nevertheless stressed that the seriousness of the allegations did not take away the students' rights as children.
She said children accused of offences remain entitled to protection of their welfare and dignity, as well as continued education, psychological care and an opportunity to take part effectively in court proceedings.
A social inquiry report also raised concerns about the emotional state of the minors, saying they showed varying levels of distress and anxiety and were struggling to cope with life in remand.
The report documented peer disagreements, claims of bullying and physical mistreatment, repeated transfers between sleeping quarters and discussions about the case that were considered improper.
"These findings directly underscore the necessity for heightened supervision, protective management, and targeted professional intervention," the court said.
The judge further pointed out that the Constitution treats the detention of children as a measure of last resort and requires that it last only for the shortest appropriate period.
"Detention is not imposed as punishment but as a necessary measure to protect the subjects, victims and witnesses, and to preserve the integrity of the trial. To ensure the subject's ongoing development as adolescents is not hindered, the court shall also issue directions facilitating the continuation of their education," the court said.
As part of the arrangements for their continued detention, the court directed that the eight students be moved from Kabete Juvenile Remand Home to Kamae Girls Borstal Institution within the Kamiti prison complex.
The minors were charged in July after investigations into the May 28 fire at the school, which killed 16 students and left others injured.
Their case was transferred from Naivasha to the Kibera Law Courts in Nairobi after security concerns were raised.
The students had been held at Kabete Juvenile Remand Home while waiting for the High Court to determine their application for release.
Justice Kavedza also ordered authorities to ensure that the minors receive regular psychological assistance throughout the proceedings.
She said the nature of the charges required the children to receive structured and continuous professional support so they could understand what was happening in court and participate meaningfully in the trial.
The court directed that the students should have uninterrupted access to qualified counsellors and psychologists.
Witness safety was another major factor in the decision.
The judge said the possibility of intimidation or interference could not be ruled out and could happen either openly or through indirect means.
She said the close relationship and proximity between the accused minors and important witnesses increased the concern, particularly because some witnesses remained vulnerable.
While the prosecution had not presented evidence of actual interference by the students, Justice Kavedza said the possibility was supported by the circumstances before the court.
"Considering the close proximity of the subjects to key witnesses, the prevailing vulnerabilities of those witnesses, and the surrounding circumstances, the likelihood constitutes a compelling reason to deny bail," she said.
The pre-bail reports also showed that several children affected by the incident were still receiving medical treatment or undergoing intensive psychological counselling.
According to the court, the passage of time had not eased the tension surrounding the case, while the trauma suffered by the victims continued to affect those involved.
"In these circumstances, releasing the subject minors at this juncture would pose a substantial threat to the integrity of the trial and undermine public confidence in the administration of justice," the court said.
Despite the decision to keep them in custody, the reports placed before the court showed that the eight students had several factors in their favour.
They were all first-time offenders and adolescents, with no previous criminal records or history of failing to comply with bail or bond terms.
There were also no reported cases of substance abuse involving the minors.
The students were described as having average academic performance and participating in school activities such as music, drama and chapel programmes.
The reports further found that they came from stable families with parents who had shown commitment to supporting them. Proposed sureties had also been verified.
The court was also told of the emotional difficulties affecting some of the students and their wish to continue with their education.
"Notably, the inquiries also highlight profound emotional vulnerabilities among certain subjects. The minors have uniformly expressed a desire to resume their secondary education and sit their national examinations, albeit with a preference for institutions other than Utumishi Girls Academy," the judge said.
Justice Kavedza acknowledged the mitigation presented on behalf of the minors but said the scale of the incident remained a key consideration.
She noted that the case involves the deaths of 16 children and injuries to several others, with the effects of the tragedy extending beyond the courtroom.
"The casualty and impact assessment record records 16 deceased victims, nine critically injured children, four injured, three instances of lost property and traumatised children."
The court therefore maintained the minors' detention while putting in place measures intended to protect their welfare and allow them to continue with their education and receive psychological care as the case proceeds.