Skip to content
JudgmentJOHN ODHIAMBO ONUNGA VS The Republic6 min read

JOHN ODHIAMBO ONUNGA VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


  1. This Honourable Court is called upon to determine the whether the Applicant should be released on bail/bond pending the hearing and determination of this trial. The Applicant pleaded not guilty resulting to Pre-bail order. The Applicant was charged with 3 counts of obtaining money by false pretenses contrary  to section 313 of the Penal code,
  2. On 11th January 2021 the Applicant pleaded not guilty to the 3 counts and he was granted a bond of KSH 500,000 with one sureity. One Francia Motanya was approved as his sureity on 28th January 2021  and the accused person was released from custody.   The hearing did not commence immediately as the accused person sought 3 adjournments.  In the first two instances the  advocate indicated that  he was unwell  and them the defence indicated they wished to negotiate. These negotiations collapsed and the hearing eventually kicked off on 21/4/2022 and even on this date the Applicant had sought yet another adjournment which was denied. The complainant gave her evidence and the matter was adjourned to 25/7/2022 . On that date, the Applicant did not appear but his Advocate attended court and indicated that his client was unwell. The matter was adjourned to 25/8/ 2022.  On that date both the Applicant and his advocate did not attend court  and that is when the Warrant of arrest was issued.
  3. The warrant remained un executed until the 20th of February 2024 when he was brought to court.  The investigating officer had established that he had been arrested over another matter .       the surety who had been looking for him all along then indicated that she wished to be discharged and that is how the bond was canceled .The Applicant is currently remanded at kingorani. G. K Prison.

Bail Information Report

  1. In the report dated 30TH October  2024 by Stephen Muthoka, it  show  that he resides in a rental house in Bamburi. Mwisho  Area and his family could only raise Ksh 30,0000 . 
  2. Accordingly, the Applicant was described as a family man with parental responsibilities as indicated above. His place of abode and his known source of livelihood here in Mombasa County was confirmed. In the event he is admitted on bond awaiting full trial, he undertakes to continue residing in Mombasa where his family and other relatives live.
  3. The accused person had no previous positive bail history and had no any previous criminal record therefore had no history of jumping bail. He however had several other cased pending in other courts. The local administration was interviewed and various others independently gave their opinion on his release on bond terms and from this it was deduced that his safety and that of the witnesses were not an issue during trial period and they were unlikely to be an issue now while he remains out on bond.
  4. The officer recommended that on account of interviewees information and the findings herein, this Honourable Court court uses its discretion in the matter.

Analysis and Determination

  1. The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’). Article 49(1)(h) of the Constitution states as follows: -

“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released.”

  1. Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align the CPC with the Constitution. It provides that: -

(1) Subject to Article 49 (1) (h) of the constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all relevant circumstances and in particular -

a) the nature of seriousness of the offence;

b) the character, antecedents, associations and community ties of the accused person;

c) the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; and

d) the strength of the evidence of his having committed the office.

(2) A person who is arrested or charged with any offence shall be granted bail unless the Court is satisfied that the person-

a) has previously been granted bail and as failed to surrender to custody and that if released on bail (whether or not subject to conditions), it is likely that he would fail to surrender to custody;

b) Should be kept in custody for his own protection.

  1. The rationale behind bail or bond in Kenya is premised on the constitutional imperative under Article 50(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved.
  2. In bail or bond applications, therefore, the primary consideration must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. Ibrahim, J (as he then was) in Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that;

“The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.”

  1. The Constitution does not define the term “Compelling reasons”. But, generally a compelling argument would be something that is in accordance with the fact or some reality. In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No. 55 of 2009 the court defined the term “compelling reasons” as follows: -

“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.”

  1. In the case of Republic v Francis Kimathi [2017] eKLR, the court held that:

“… There may not be a scientific measure of what exactly amounts to compelling reasons as that would depend on the circumstances of each case. Except, however, compelling reason should be a reason or reasons which is rousing, strong, interests, attention, and brings conviction upon the court that the accused person should be denied bail. Flimsy reasons will not therefore do. Therefore, the standard is high for it draws from the constitutional philosophy that any restriction of rights and freedoms of persons must be sufficiently justified given the robust Bill of rights enshrined in the Constitution.

  1. The Bail and Bond Policy Guidelines provides thus, in regard to compelling reasons:

“(a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:

a. That the accused person is likely to fail to attend court proceedings; or

b. That the accused person is likely to commit, or abet the commission of, a serious offence; or

c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or

d. That the accused person is likely to endanger the safety of victims, individuals or the public; or

e. That the accused person is likely to interfere with witnesses or evidence; or

f. That the accused person is likely to endanger national security; or

g. That it is in the public interest to detain the accused person in custody.”

  1. The purpose of bail/bond is to ensure the accused person’s attendance during trial. 
  2. In this case the Applicant had been granted bond.  He however absented himself from court for almost two years.  There is no evidence of his illness and even his advocate did not come to court .
  3. The surety spent a lot of time looking for him even going to siaya and across the country  so she was clearly not in the picture   as to his alleged illness or whereabouts.
  4. I have also noted a sustained effort to delay the matter on the part of the applicant.  Apart from the numerous application s for adjournments he also sought the recalling of witnesses who had been cross examined by his advocate.
  5. For these reasons I find that the rights of the applicant were not breached.  He demonstrated that he is a flight risk and  and accordingly, he is best housed by the state.
  6. I find that the application lacks merit and it is dismissed. 
  7. IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…5TH ………DAY OF ………December………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant

    JOHN ODHIAMBO ONUNGA VS The Republic JOHN ODHIAMBO ONUNGA VS The Republic