1. The accused person through his counsel applied for bail pending trial in respect of the charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on 06th November, 2025, at Barwako Location in Wajir East Sub – County, within Wajir County, you murdered Mohamed Salat Omar.
2. The court directed that the probation officer does prepare and submit a pre bail report.
3. The pre-bail report dated 6th July 2026, compiled by a Senior Probation Officer, was found favorable to the accused. The report confirmed that the investigating officer did not oppose bail, noting that the accused was not a flight risk, possessed a fixed place of abode and faced no safety threats—nor did he pose a threat to the victim. Consequently, the officer concluded that the accused was suitable for bail and recommended lenient terms.
4. Having considered the application before me, I find that the sole issue for determination is whether the accused person ought to be released on bail/bond pending trial.
5. Article 49(1)(h) of the Constitution provides that:-
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’’.
6. Similarly, section 123 of the Criminal Procedure Code on Bail in certain cases states that:
1) When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:
Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
7. Further, section 123A of the Criminal Procedure Code on Exception to right to bail gives the parameters for the grant of the right to bail as follows:
(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 fulfilment 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.
[ Also see Waititu vs Republic [2021] KESC 11 (KLR) and Kenyan Judiciary’s Bail and Bond Policy Guidelines issued in March, 2015 at pages 16 to 19].
8. While the right to bail is not absolute and may be restricted where compelling reasons exist, the Constitution expressly guarantees this right. Consequently, the burden rests squarely on the prosecution to demonstrate the existence of compelling reasons to deny the accused person bail.
9. What constitutes compelling reasons, however, depends on the specific circumstances of each case. The mere gravity of the offense or the severity of the prospective sentence does not, of itself, warrant the denial of bail. Rather, the primary consideration before the court should be whether the accused person would attend trial and whether a free and fair trial could be guaranteed notwithstanding his release.
10. In determining whether a free and fair trial is possible, the court is required to consider the circumstances of both the accused and potential witnesses. However, because release on bail is a constitutional right, the burden lay on the prosecution to demonstrate why a fair trial could not be achieved upon the accused's release. Thus, the prosecution must satisfy the court that compelling reasons exists to justify withholding bail. [ See Mohamed Abdurrahman Said & Another vs Republic [2012] eKLR].
11. I have carefully considered the material before court and more specifically to the pre bail report noting that the prosecution did not swear any affidavit opposing the release of the accused and most importantly, that the investigating officer was not opposed to the accused person’s admission to bail/bond.
12. From the pre-bail report, I note that the accused person's family expressed a willingness to secure his release on bond. In any case, both the victim's family and the broader community support his release on reasonable bail/bond terms.
13. In the circumstances, the accused is admitted to Bail/Bond pending his trial in the sum of ksh 300,000 in cash or in the alternative a bond of 500,000 with one surety of like amount.
2. The court directed that the probation officer does prepare and submit a pre bail report.
3. The pre-bail report dated 6th July 2026, compiled by a Senior Probation Officer, was found favorable to the accused. The report confirmed that the investigating officer did not oppose bail, noting that the accused was not a flight risk, possessed a fixed place of abode and faced no safety threats—nor did he pose a threat to the victim. Consequently, the officer concluded that the accused was suitable for bail and recommended lenient terms.
4. Having considered the application before me, I find that the sole issue for determination is whether the accused person ought to be released on bail/bond pending trial.
5. Article 49(1)(h) of the Constitution provides that:-
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’’.
6. Similarly, section 123 of the Criminal Procedure Code on Bail in certain cases states that:
1) When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:
Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
7. Further, section 123A of the Criminal Procedure Code on Exception to right to bail gives the parameters for the grant of the right to bail as follows:
(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 fulfilment 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.
[ Also see Waititu vs Republic [2021] KESC 11 (KLR) and Kenyan Judiciary’s Bail and Bond Policy Guidelines issued in March, 2015 at pages 16 to 19].
8. While the right to bail is not absolute and may be restricted where compelling reasons exist, the Constitution expressly guarantees this right. Consequently, the burden rests squarely on the prosecution to demonstrate the existence of compelling reasons to deny the accused person bail.
9. What constitutes compelling reasons, however, depends on the specific circumstances of each case. The mere gravity of the offense or the severity of the prospective sentence does not, of itself, warrant the denial of bail. Rather, the primary consideration before the court should be whether the accused person would attend trial and whether a free and fair trial could be guaranteed notwithstanding his release.
10. In determining whether a free and fair trial is possible, the court is required to consider the circumstances of both the accused and potential witnesses. However, because release on bail is a constitutional right, the burden lay on the prosecution to demonstrate why a fair trial could not be achieved upon the accused's release. Thus, the prosecution must satisfy the court that compelling reasons exists to justify withholding bail. [ See Mohamed Abdurrahman Said & Another vs Republic [2012] eKLR].
11. I have carefully considered the material before court and more specifically to the pre bail report noting that the prosecution did not swear any affidavit opposing the release of the accused and most importantly, that the investigating officer was not opposed to the accused person’s admission to bail/bond.
12. From the pre-bail report, I note that the accused person's family expressed a willingness to secure his release on bond. In any case, both the victim's family and the broader community support his release on reasonable bail/bond terms.
13. In the circumstances, the accused is admitted to Bail/Bond pending his trial in the sum of ksh 300,000 in cash or in the alternative a bond of 500,000 with one surety of like amount.