1. Abukur Lolipusike, the Accused, is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence are that on the 25 th day of September, 2025, at about 2030 hrs at Sereolipi town Centre Waso Ward in Samburu East Sub-County within Samburu County, murdered KIPRONO LEKUTANOO (Deceased).
2. The Accused denied the information therefore seeks to be released on bond pending trial. It is urged by the learned defence counsel, Mr. Kihoro Kimani that the Accused is not a flight risk as he was out on bond while facing the charge of Manslaughter and he cooperated with the police by even collecting the order for mental assessment where after he went to hospital himself for the examination.
3. Learned Prosecution Counsel, Mr. Kimani however submits that these are different proceedings since the Accused has now pleaded to the offence of murder, the sentence is serious. He called upon the court to be guided by the Pre-bail report.
4. Pursuant to the provisions of Section 9 and 10 of the Victim Protection Act, this court sought the input of the Probation Officer who filed a pre-bail report. It is the recommendation of the probation officer that the Accused has a fixed place of abode, he is of reliable character, not a flight risk and has a supportive family that can be relied upon.
5. The victim’s family is not opposed to the release of the Accused on bail since the Accused has already paid a ransom of nine cows, nine sheep and nine goats believed to appease the deceased according to Samburu culture.
6. I have considered rival submissions. It is an accused person’s right to be released on bond pending trial unless circumstances exist that require his incarceration during trial. Article 49(1)(h) of the Constitution provides thus;
(1) An arrested 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.
7. Although the Constitution and statute are silent on what amounts to compelling reasons that would make the court deny an accused person bail; In Republic v Joktan Mayende & 3 Others [2012] KEHC 5551 (KLR) the court stated that;
“…..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.”
8. The Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25 sets applicable procedure to the question of bail. It provides for circumstances under which an accused person may be denied 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, a 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.”
9. Section 123A of the Criminal Procedure Code provides;
(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 the relevant circumstances and in particular—
(a)the nature or 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 fulfillment of obligations under previous grants of bail; and;
(d)the strength of the evidence of his having committed the offence;
(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 has 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.
10. All these culminate into the fact that an accused can only be denied bail if the State/Prosecution proves existence of compelling reasons. In Ng’ang’a v Republic [1985] KLR 451 Chesoni J. (as he then was) stated thus;
“1. 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 consider the following factors:
a. In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that:
i. The accused will fail to turn up at his trial or to surrender to custody;
ii. The accused may commit further offences; or
iii. He will obstruct the course of justice.”
11. Article 50(2)(a) of the Constitution provides;
(2) Every accused person has the right to a fair trial, which includes the right—
a) to be presumed innocent until the contrary is proved;
12. An Accused person is guaranteed the right to be presumed innocent until found guilty by a court of law. It would be wrong for an individual to be subjected to pre-trial detention that is why there is need to balance the right of the accused person and that of the victim.
13. In such a case, of importance is if the accused will turn up for trial and it has been demonstrated that the Accused will turn up for trial as he did previously. Therefore, there is absolutely no reason to deny him bond.
14. In the premises, I grant the Accused bond of Kshs.500,000/- with a surety in an even sum.
15. It is so ordered.
2. The Accused denied the information therefore seeks to be released on bond pending trial. It is urged by the learned defence counsel, Mr. Kihoro Kimani that the Accused is not a flight risk as he was out on bond while facing the charge of Manslaughter and he cooperated with the police by even collecting the order for mental assessment where after he went to hospital himself for the examination.
3. Learned Prosecution Counsel, Mr. Kimani however submits that these are different proceedings since the Accused has now pleaded to the offence of murder, the sentence is serious. He called upon the court to be guided by the Pre-bail report.
4. Pursuant to the provisions of Section 9 and 10 of the Victim Protection Act, this court sought the input of the Probation Officer who filed a pre-bail report. It is the recommendation of the probation officer that the Accused has a fixed place of abode, he is of reliable character, not a flight risk and has a supportive family that can be relied upon.
5. The victim’s family is not opposed to the release of the Accused on bail since the Accused has already paid a ransom of nine cows, nine sheep and nine goats believed to appease the deceased according to Samburu culture.
6. I have considered rival submissions. It is an accused person’s right to be released on bond pending trial unless circumstances exist that require his incarceration during trial. Article 49(1)(h) of the Constitution provides thus;
(1) An arrested 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.
7. Although the Constitution and statute are silent on what amounts to compelling reasons that would make the court deny an accused person bail; In Republic v Joktan Mayende & 3 Others [2012] KEHC 5551 (KLR) the court stated that;
“…..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.”
8. The Judiciary Bail and Bond Policy Guidelines, 2015, pg. 25 sets applicable procedure to the question of bail. It provides for circumstances under which an accused person may be denied 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, a 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.”
9. Section 123A of the Criminal Procedure Code provides;
(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 the relevant circumstances and in particular—
(a)the nature or 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 fulfillment of obligations under previous grants of bail; and;
(d)the strength of the evidence of his having committed the offence;
(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 has 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.
10. All these culminate into the fact that an accused can only be denied bail if the State/Prosecution proves existence of compelling reasons. In Ng’ang’a v Republic [1985] KLR 451 Chesoni J. (as he then was) stated thus;
“1. 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 consider the following factors:
a. In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing that:
i. The accused will fail to turn up at his trial or to surrender to custody;
ii. The accused may commit further offences; or
iii. He will obstruct the course of justice.”
11. Article 50(2)(a) of the Constitution provides;
(2) Every accused person has the right to a fair trial, which includes the right—
a) to be presumed innocent until the contrary is proved;
12. An Accused person is guaranteed the right to be presumed innocent until found guilty by a court of law. It would be wrong for an individual to be subjected to pre-trial detention that is why there is need to balance the right of the accused person and that of the victim.
13. In such a case, of importance is if the accused will turn up for trial and it has been demonstrated that the Accused will turn up for trial as he did previously. Therefore, there is absolutely no reason to deny him bond.
14. In the premises, I grant the Accused bond of Kshs.500,000/- with a surety in an even sum.
15. It is so ordered.