1. This is a Ruling in respect of a bond application. The applicant was charged together with 2 others, with 5 counts, the first one being robbery with violence contrary to section 296(2) of the Penal Code; the others were possession of a firearm without a licence contrary to section 4A (1) (a) of the Firearms Act, and handling stolen property contrary to section 322(1)(2) of the Penal Code. He was further charged with possession of ammunition without a licence contrary to section 2(d) of the Firearms Act, and possession of cannabis sativa contrary to Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994.
2. He was arraigned in court on 14.4.2021. The State filed an affidavit opposing bond. The main aspect was that the weapon had been used to commit several murders. They were awaiting ballistics reports. The accused had no fixed place of abode. They were a flight risk. The applicant had previous convictions. In response, the applicant stated that he is entitled to bond under the Constitution. The court then called for a pre-bail report.
3. The lower court made a consolidated ruling in the primary matter and another matter, that is CMCR E119 of 2021 and E121 of 2021 . The court noted that there were two firearms, but one is yet to be recovered. The court analysed the pre-bail report. and dismissed the applicant’s application.
4. There was no revisiting of the application in the lower court. The applicant simply came to this court without offering the trial court a chance to revisit the question of bond.
5. The matter is pending ruling on an application to re-open the case and have ballistic evidence tendered and another ruling on whether there is sufficient evidence to place the accused on their defence. The pendency of this application has derailed the said rulings, one of which is held in abeyance.
6. The applicant now seeks to be released on reasonable bond terms he can afford. He posited that the court was of the view that it was to release him when the first witness testified. Except for the application to reopen for the production of the ballistic evidence, the prosecution has concluded its evidence. The applicant maintained that all witnesses have testified, yet the court has not released him on bail. He argued that bail is his constitutional right. The prosecution, on the other hand, maintained that the Applicant is a flight risk and should remain in custody for his own safety.
Analysis
7. The application for bond is superficial, and its main basis is that he has been in custody for 4 years without being released.
8. Before proceeding, I note that only the applicant made an application and named other accused persons. The other accused persons denied having filed any application. The names of the other co-accused in the lower court were thus introduced in error in this application. They are struck out. Only one person is an applicant herein, Michael Malkia Peter. The names of the non-applicants, Mutua Ndunda and Emmanuel Onkoba Nyambegera, are hereby struck out.
9. Bail/ bond is enshrined in Article 49 (1) h of the Constitution of Kenya, 2010, which states as follows:
(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.
10. This therefore means that the right places a negative duty on the Accused person to do nothing. The State must show compelling reasons. The heinousness of a crime is not a compelling reason. This is because it would require a derogation from the presumption of innocence. Article 50 (2)(a) provides for the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.
11. As things stand, the court is unaware of the actions leading to the charge. The accused is presumed innocent until the state proves otherwise. However, he has no fixed abode. The court asked the accused to address the question of fixed abode, but he did not. The court below found that the applicant has no fixed abode, a finding supported by the pre-bail report. No significant factors are set out to show that circumstances have changed. Nothing could have been harder for the applicant to show that, since 2021, steps have been taken and concretised to give the applicant a fixed abode. This means that without a fixed abode, it is unsafe to grant bond. In the case of Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR) , the Court of appeal (Warsame, as then he was, Musinga & Odek, JJ.A .) held as follows:
It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person. We wish to adopt the definition of what amounts to compelling reasons as defined by the High Court in R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 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 standards set by the Constitution.”
12. According to the recently launched publication, Criminal Procedure Bench Book at pages 48 – 51 paragraph 105, compelling reasons may include the likelihood that the accused will fail to attend court; commit or abet the commission of, a serious offence; endanger the safety of victims, individuals or the public; interfere with witnesses or evidence; endanger national security or public safety; and where it is necessary for the protection of the accused.
13. More poignantly, whereas there is no time when an application for bond ought to be made, it is not lost; the application in this court was about to make a ruling on a case to answer. To release or not to release is not a question of innocence or guilt. This is because an accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as follows:
39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
40. This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory.
14. The State still retains the burden of proving innocence or otherwise of the applicant. The duty of the applicant, in this matter, was simple, to displace the lower court's finding that he has no fixed abode. Further, the State maintained that it feared for the applicant's safety; he did not comment on this. A fixed abode is a matter specially within the applicant's knowledge. Section 111 of the Evidence Act provides as follows:
(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence
15. A court cannot shift the burden of proof to an accused. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft-quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington v DPP [1935] AC 462, pp. 481. in the case of Sekitoleko v Uganda (1967) EA 531 at p 533 , where the legendary Sir Udo Udoma C J stated as follows:
“As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.”
16. The most oft-quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
17. The presumption of innocence on the applicant still remains. However, compelling reasons exist not to release the accused on bond. The prayer for the grant of bond is consequently denied. The State and the victims, through PACS, demonstrated compelling reasons not to release the applicant on bond.
18. The matter having been concluded, only awaiting the two rulings, there is no harm in waiting for a decision of the court. Therefore, I do not find merit in the application for bond. The same is dismissed.
19. The prayer for reinstating bond is consequently denied.
Orders
20. Therefore, the Court makes the following orders.
a) The application for bond is declined.
b) The accused shall remain in lawful custody.
c) The lower court file be returned for further proceedings in the trial court.
d) Directions on 15.09.2026 in the trial court.
e) Production order to issue.
DELIVERED, DATED and SIGNED at KITUI this 2 nd day of September the year of our Lord Two Thousand and Twenty - Six. Ruling delivered physically and through Microsoft Teams Online Platform.
In the Presence of:
Ms. Njihia for the ODPP
Applicant in person
Court Assistant: Allan
2. He was arraigned in court on 14.4.2021. The State filed an affidavit opposing bond. The main aspect was that the weapon had been used to commit several murders. They were awaiting ballistics reports. The accused had no fixed place of abode. They were a flight risk. The applicant had previous convictions. In response, the applicant stated that he is entitled to bond under the Constitution. The court then called for a pre-bail report.
3. The lower court made a consolidated ruling in the primary matter and another matter, that is CMCR E119 of 2021 and E121 of 2021 . The court noted that there were two firearms, but one is yet to be recovered. The court analysed the pre-bail report. and dismissed the applicant’s application.
4. There was no revisiting of the application in the lower court. The applicant simply came to this court without offering the trial court a chance to revisit the question of bond.
5. The matter is pending ruling on an application to re-open the case and have ballistic evidence tendered and another ruling on whether there is sufficient evidence to place the accused on their defence. The pendency of this application has derailed the said rulings, one of which is held in abeyance.
6. The applicant now seeks to be released on reasonable bond terms he can afford. He posited that the court was of the view that it was to release him when the first witness testified. Except for the application to reopen for the production of the ballistic evidence, the prosecution has concluded its evidence. The applicant maintained that all witnesses have testified, yet the court has not released him on bail. He argued that bail is his constitutional right. The prosecution, on the other hand, maintained that the Applicant is a flight risk and should remain in custody for his own safety.
Analysis
7. The application for bond is superficial, and its main basis is that he has been in custody for 4 years without being released.
8. Before proceeding, I note that only the applicant made an application and named other accused persons. The other accused persons denied having filed any application. The names of the other co-accused in the lower court were thus introduced in error in this application. They are struck out. Only one person is an applicant herein, Michael Malkia Peter. The names of the non-applicants, Mutua Ndunda and Emmanuel Onkoba Nyambegera, are hereby struck out.
9. Bail/ bond is enshrined in Article 49 (1) h of the Constitution of Kenya, 2010, which states as follows:
(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.
10. This therefore means that the right places a negative duty on the Accused person to do nothing. The State must show compelling reasons. The heinousness of a crime is not a compelling reason. This is because it would require a derogation from the presumption of innocence. Article 50 (2)(a) provides for the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.
11. As things stand, the court is unaware of the actions leading to the charge. The accused is presumed innocent until the state proves otherwise. However, he has no fixed abode. The court asked the accused to address the question of fixed abode, but he did not. The court below found that the applicant has no fixed abode, a finding supported by the pre-bail report. No significant factors are set out to show that circumstances have changed. Nothing could have been harder for the applicant to show that, since 2021, steps have been taken and concretised to give the applicant a fixed abode. This means that without a fixed abode, it is unsafe to grant bond. In the case of Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR) , the Court of appeal (Warsame, as then he was, Musinga & Odek, JJ.A .) held as follows:
It is therefore clear that such constitutional right can only be limited if the prosecution satisfies the court that there are compelling grounds to warrant its denial to an accused person. We wish to adopt the definition of what amounts to compelling reasons as defined by the High Court in R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 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 standards set by the Constitution.”
12. According to the recently launched publication, Criminal Procedure Bench Book at pages 48 – 51 paragraph 105, compelling reasons may include the likelihood that the accused will fail to attend court; commit or abet the commission of, a serious offence; endanger the safety of victims, individuals or the public; interfere with witnesses or evidence; endanger national security or public safety; and where it is necessary for the protection of the accused.
13. More poignantly, whereas there is no time when an application for bond ought to be made, it is not lost; the application in this court was about to make a ruling on a case to answer. To release or not to release is not a question of innocence or guilt. This is because an accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as follows:
39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
40. This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory.
14. The State still retains the burden of proving innocence or otherwise of the applicant. The duty of the applicant, in this matter, was simple, to displace the lower court's finding that he has no fixed abode. Further, the State maintained that it feared for the applicant's safety; he did not comment on this. A fixed abode is a matter specially within the applicant's knowledge. Section 111 of the Evidence Act provides as follows:
(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence
15. A court cannot shift the burden of proof to an accused. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft-quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington v DPP [1935] AC 462, pp. 481. in the case of Sekitoleko v Uganda (1967) EA 531 at p 533 , where the legendary Sir Udo Udoma C J stated as follows:
“As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.”
16. The most oft-quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 comes in handy in describing the legal burden of proof in criminal matters, that:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
17. The presumption of innocence on the applicant still remains. However, compelling reasons exist not to release the accused on bond. The prayer for the grant of bond is consequently denied. The State and the victims, through PACS, demonstrated compelling reasons not to release the applicant on bond.
18. The matter having been concluded, only awaiting the two rulings, there is no harm in waiting for a decision of the court. Therefore, I do not find merit in the application for bond. The same is dismissed.
19. The prayer for reinstating bond is consequently denied.
Orders
20. Therefore, the Court makes the following orders.
a) The application for bond is declined.
b) The accused shall remain in lawful custody.
c) The lower court file be returned for further proceedings in the trial court.
d) Directions on 15.09.2026 in the trial court.
e) Production order to issue.
DELIVERED, DATED and SIGNED at KITUI this 2 nd day of September the year of our Lord Two Thousand and Twenty - Six. Ruling delivered physically and through Microsoft Teams Online Platform.
In the Presence of:
Ms. Njihia for the ODPP
Applicant in person
Court Assistant: Allan