RULING
1. The applicant herein filed an application dated 29th June seeking that the honourable court do review and set aside the ruling of the trial court in Iten MCCR NO.E899 0F 2026 delivered on 23rd June 2026, which denied the applicants bond. The applicants further pray that the honourable court be pleased to issue an order admitting all the applicants to reasonable bail/bond terms pending the hearing and determination of the main trial.
2. The application is premised on the grounds that the bond is a fundamental right guaranteed under Article 49(1) (h) of the constitution and must be granted as a matter of course in the absence of clear, demonstrable and compelling reasons. That the reason advanced by the trial magistrate, of holding the applicants in custody to await the arrest of other suspects does not amount to a compelling reason. Further that the trial magistrate failed to appreciate that the High Court stayed Case No. E253 of 2026 and that the 1st applicant was fully compliant and was released on bond in criminal case E296 of 2026.
3. In their further affidavit dated 8th July 2026, the applicant averred that sworn by the investigating officer was full of fabrications, and carefully orchestrated to satisfy a private vendetta over land parcel Cherangany/Kapkanyor/40.
4. The applications was canvassed by way of written submissions which I have considered.
The Law.
5. Whether the application for bond is merited in terms of Article 49(1) (h) of the Constitution.
Article 49(1) (h) of the Constitution provides that:-
An accused person has the right….
(h) to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.
6. It follows that the right to bail is not absolute and where there are compelling reasons, that right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.
7. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail thus:-
“ the following procedures should apply to the bail hearing:
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:
b. That the accused person is likely to fail to attend court proceedings;
Or
c. That the accused person is likely to commit, or abet the commission of, serious offence; or
d. That the exception to the right to bail stipulated under Section 123A of the criminal Procedure Code is applicable in the circumstances; or
e. That the accused person is likely to endanger the safety of victims, individuals or the public; or
f. That the accused person is likely to interfere with witnesses or evidence; or
g. That the accused person is likely to endanger national security; or
h. That it is in the public interest to detain the accused person in custody.”
7. In Republic vs Fredrick Ole Leliman & 4 Others [2016] eKLR the court held that:
“The principles set out under the Bail and Bond Policy Guidelines I have been referred to are the same ones that were set out in the celebrated case of Ng’ang’a vs Republic 1985 KLR 451 where Chesoni J, as he then was thus:-“The court in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (Cap 75), should grant bail to an accused person unless it is shown by the prosecution that there are substantial grounds for believing that:-
a. The accused will fail to turn up at his trial or to surrender to custody;
b. The accused may commit further offences; or
c. He or she will obstruct the course of justice
9. The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider;
a. The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;
b. The strength of the prosecution case;
c. The character and antecedents of the accused;
d. The likelihood of the accused interfering with prosecution witnesses.”
10. The issue that arises is whether the reasons raised by the probation officers report are compelling reasons under Article 49(1) (h) of the Constitution.
11. I have looked at the ruling of the learned trial magistrate, and guided by the probation officers report, she took note of the fact that one of the applicants had committed the current offence after his release on another file. She noted that the report presented by probation department were not favorable, and that the recommendations thereof were that bond terms be deferred at the moment to ensure the stabilization of the prevailing circumstances and to allow for the rest of other suspects.
12. It is worthy of note that compelling reasons must be clear and demonstrable. The affidavit of the investigating officer does not demonstrate how the applicants, if released on bond are likely to influence the arrest of the other suspects.
13. On the issue of the area being volatile, adequate measures can be put in place to ensure that there is adequate vigilance employed on the applicants. The court can do so by setting special conditions to ensure that the applicants are duly monitored, without necessarily denying them their constitutional right to be released on bond.
14. Upon further scrutiny of the lower court record, I there is no information laid before the court to demonstrate that the applicants are a flight risk and not likely to attend court is released on bond. The applicants have fixed places of abode, and thus not a flight risk. They have strong familial ties and hence not likely to abscond.
15. In the upshot, the applicant are found to be suitable to for release of bond at this stage.
16. This court does review and set aside the ruling of the trial court in Iten MCCR NO.E899 0F 2026 delivered on 23rd June 2026, which denied the applicants bond, and admits the applicants to bond in the following terms:-
i) Each applicant is granted bond of Ksh 100,000 plus one surety of similar amount.
ii) In the alternative, each applicant to deposit cash bail of Ksh 50,000. In addition to the cash bail, each applicant to avail one contact person to deposit a copy of Identity card and passport size photograph.
iii) That each of the applicants shall be reporting to the DCIO Marakwet West Sub County, once every two months pending the hearing of this case, or as maybe reviewed by court.
It is so ordered.
Ruling dated, signed and delivered at Eldoret this 31st day of July, 2026.
Martha. Mutuku
Judge.
Mr. Namasake for state.
Court Assistant- Mr.Kibet.
Mr. Gikandi Advocate for the applicants.
Accused- Present.
1. The applicant herein filed an application dated 29th June seeking that the honourable court do review and set aside the ruling of the trial court in Iten MCCR NO.E899 0F 2026 delivered on 23rd June 2026, which denied the applicants bond. The applicants further pray that the honourable court be pleased to issue an order admitting all the applicants to reasonable bail/bond terms pending the hearing and determination of the main trial.
2. The application is premised on the grounds that the bond is a fundamental right guaranteed under Article 49(1) (h) of the constitution and must be granted as a matter of course in the absence of clear, demonstrable and compelling reasons. That the reason advanced by the trial magistrate, of holding the applicants in custody to await the arrest of other suspects does not amount to a compelling reason. Further that the trial magistrate failed to appreciate that the High Court stayed Case No. E253 of 2026 and that the 1st applicant was fully compliant and was released on bond in criminal case E296 of 2026.
3. In their further affidavit dated 8th July 2026, the applicant averred that sworn by the investigating officer was full of fabrications, and carefully orchestrated to satisfy a private vendetta over land parcel Cherangany/Kapkanyor/40.
4. The applications was canvassed by way of written submissions which I have considered.
The Law.
5. Whether the application for bond is merited in terms of Article 49(1) (h) of the Constitution.
Article 49(1) (h) of the Constitution provides that:-
An accused person has the right….
(h) to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.
6. It follows that the right to bail is not absolute and where there are compelling reasons, that right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.
7. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail thus:-
“ the following procedures should apply to the bail hearing:
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:
b. That the accused person is likely to fail to attend court proceedings;
Or
c. That the accused person is likely to commit, or abet the commission of, serious offence; or
d. That the exception to the right to bail stipulated under Section 123A of the criminal Procedure Code is applicable in the circumstances; or
e. That the accused person is likely to endanger the safety of victims, individuals or the public; or
f. That the accused person is likely to interfere with witnesses or evidence; or
g. That the accused person is likely to endanger national security; or
h. That it is in the public interest to detain the accused person in custody.”
7. In Republic vs Fredrick Ole Leliman & 4 Others [2016] eKLR the court held that:
“The principles set out under the Bail and Bond Policy Guidelines I have been referred to are the same ones that were set out in the celebrated case of Ng’ang’a vs Republic 1985 KLR 451 where Chesoni J, as he then was thus:-“The court in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (Cap 75), should grant bail to an accused person unless it is shown by the prosecution that there are substantial grounds for believing that:-
a. The accused will fail to turn up at his trial or to surrender to custody;
b. The accused may commit further offences; or
c. He or she will obstruct the course of justice
9. The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider;
a. The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found guilty;
b. The strength of the prosecution case;
c. The character and antecedents of the accused;
d. The likelihood of the accused interfering with prosecution witnesses.”
10. The issue that arises is whether the reasons raised by the probation officers report are compelling reasons under Article 49(1) (h) of the Constitution.
11. I have looked at the ruling of the learned trial magistrate, and guided by the probation officers report, she took note of the fact that one of the applicants had committed the current offence after his release on another file. She noted that the report presented by probation department were not favorable, and that the recommendations thereof were that bond terms be deferred at the moment to ensure the stabilization of the prevailing circumstances and to allow for the rest of other suspects.
12. It is worthy of note that compelling reasons must be clear and demonstrable. The affidavit of the investigating officer does not demonstrate how the applicants, if released on bond are likely to influence the arrest of the other suspects.
13. On the issue of the area being volatile, adequate measures can be put in place to ensure that there is adequate vigilance employed on the applicants. The court can do so by setting special conditions to ensure that the applicants are duly monitored, without necessarily denying them their constitutional right to be released on bond.
14. Upon further scrutiny of the lower court record, I there is no information laid before the court to demonstrate that the applicants are a flight risk and not likely to attend court is released on bond. The applicants have fixed places of abode, and thus not a flight risk. They have strong familial ties and hence not likely to abscond.
15. In the upshot, the applicant are found to be suitable to for release of bond at this stage.
16. This court does review and set aside the ruling of the trial court in Iten MCCR NO.E899 0F 2026 delivered on 23rd June 2026, which denied the applicants bond, and admits the applicants to bond in the following terms:-
i) Each applicant is granted bond of Ksh 100,000 plus one surety of similar amount.
ii) In the alternative, each applicant to deposit cash bail of Ksh 50,000. In addition to the cash bail, each applicant to avail one contact person to deposit a copy of Identity card and passport size photograph.
iii) That each of the applicants shall be reporting to the DCIO Marakwet West Sub County, once every two months pending the hearing of this case, or as maybe reviewed by court.
It is so ordered.
Ruling dated, signed and delivered at Eldoret this 31st day of July, 2026.
Martha. Mutuku
Judge.
Mr. Namasake for state.
Court Assistant- Mr.Kibet.
Mr. Gikandi Advocate for the applicants.
Accused- Present.