REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.E008 OF 2025
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
BRIAN KIMUTAI ………………………..…………………….. ACCUSED
RULING ON BOND
1. Brian Kimutai is charged with murder under Section 203 as read with Section 204 of the Penal Code. The particulars are that on 26/5/2025 at Tachasis village, Mumberes Sub-location Koibatek Sub-County within Baringo County he murdered Jonathan Rono. He denied the offence on 18/6/2025. Bond was opposed by the prosecutor on the ground that accused was going to interfere with witnesses.
On 18/9/2025 bond was denied on the ground that his life was in danger if he was released at that time, in addition that there was the possibility that he could interfere with witnesses.
The court directed him to re-apply for bond later. The accused now made that application for bond. The Court had stated;
Releasing the accused at this stage would expose him to real danger. In addition, he resides in the same locality as key witnesses, raising legitimate fears of possible interference. From the foregoing, I find that there are compelling reasons of the accused’s personal security and the integrity of the trial process.
The application for bond is therefore declined. The accused shall remain in custody.
Accused may reapply for bond at a later stage should circumstances change.
A fresh Pre Bail Report was filed by Probation and After Care Services Koibatek dated 30/4/2026.
The report indicates that the family of the victim still opposes bond and are bitter towards the accused.
Secondly that they have not approached them for reconciliation.
Thirdly that the local administration is of the view that there is still the risk that should the accused appear in the community it might ignite the bitter memories if the past and risk his life.
His father is ready to stand surety for him, and to ensure that he does not return to the area where the offence is alleged to have been committed.
I have carefully considered the new application for bond.
The issue is whether the application is merited.
while denying the accused person’s application for bond the court had stated and I reiterate:
Bail is a constitutional right of every citizen. Article 49(1) (h) of the Constitution is explicit that, unless there is some compelling reason, an accused person, be he a citizen or foreigner, ought to be released on bail, as a matter of right, pending the hearing and determination of his case. It provides that:
“An arrested person has the right … to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released.”
Accordingly, Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates 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 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. That 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.
And, in the Bail and Bond Policy Guidelines, it is restated as a general guideline in Paragraph 4.9 that:
“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining, the existence of compelling reasons for denying of an accused person bail, particularly in serious offences.”
The guidelines then offer the following non-exhaustive factors for consideration in bail applications:
a. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
b. The strength of the prosecution case.
c. The character and antecedents of the accused person.
d. The failure of the accused person to observe bail or bond terms.
e. The likelihood of interfering with witnesses.
f. The need to protect the victim or victims of the crime.
g. The relationship between the accused person and the potential witnesses.
h. The best interest of child offenders.
i. The accused person is a flight risk.
j. Whether the accused person is gainfully employed.
k. Public order, peace and security.
l. Protection of the accused persons.
The overarching objective of bail is to ensure the accused attends his trial. Relevant matters to be considered by the court include the nature of the charge, the likely sentence, previous criminal records, the views of the family of the victim, the possibility of interference with witnesses, the temptation to abscond and the safety of the accused .
I have taken into account all the foregoing guidelines.
I have considered that the prosecution has not objected this time, meaning that the fear that existed before with respect to witnesses has abated.
Regarding the reasons in the Probation and After Care Services report, the Probation and After Care Services officer must be aware that the failure by an accused person or his family to approach the family of the deceased for reconciliation cannot be a reason to deny the accused bond, that must be made clear to the victims when they are being interviewed. The accused person is not obligated to do so.
An accused person is presumed innocent until proven guilty, as per Article 50 (2)(a) of the Constitution which states that ;Every accused person has the right to a fair trial, which includes the right— (a) to be presumed innocent until the contrary is proved ; and it is not in order for the Probation and After Care Services officer to create that impression in the family of the victim. That is not an issue that should appear in a Pre Bail Report.
That besides, the accused person has a prospective surety and is willing to live elsewhere, away from the scene of the alleged crime. In the circumstances his application has merit.
His application for bond is allowed on the following terms.
Bond is set at kshs. 300,000/= with surety of similar amount.
The conditions are that he will remain away from the area of the offence until the matter is finalized, and avail himself to court as and when required to do so.
RULING Dated, signed and delivered in open court at Eldama Ravine this 20 th May 2026
Mumbua T. Matheka
Judge
In the presence of:-
CA Karanja
Accused Present Virtually
Counsel for Accused Ms. Barasah
For State Ms. Omari
Ruling on Bond HCCRC E008 of 2025 Page 2 of 2
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCR CASE NO.E008 OF 2025
REPUBLIC ..…………………………………….………….. PROSECUTOR
VERSUS
BRIAN KIMUTAI ………………………..…………………….. ACCUSED
RULING ON BOND
1. Brian Kimutai is charged with murder under Section 203 as read with Section 204 of the Penal Code. The particulars are that on 26/5/2025 at Tachasis village, Mumberes Sub-location Koibatek Sub-County within Baringo County he murdered Jonathan Rono. He denied the offence on 18/6/2025. Bond was opposed by the prosecutor on the ground that accused was going to interfere with witnesses.
On 18/9/2025 bond was denied on the ground that his life was in danger if he was released at that time, in addition that there was the possibility that he could interfere with witnesses.
The court directed him to re-apply for bond later. The accused now made that application for bond. The Court had stated;
Releasing the accused at this stage would expose him to real danger. In addition, he resides in the same locality as key witnesses, raising legitimate fears of possible interference. From the foregoing, I find that there are compelling reasons of the accused’s personal security and the integrity of the trial process.
The application for bond is therefore declined. The accused shall remain in custody.
Accused may reapply for bond at a later stage should circumstances change.
A fresh Pre Bail Report was filed by Probation and After Care Services Koibatek dated 30/4/2026.
The report indicates that the family of the victim still opposes bond and are bitter towards the accused.
Secondly that they have not approached them for reconciliation.
Thirdly that the local administration is of the view that there is still the risk that should the accused appear in the community it might ignite the bitter memories if the past and risk his life.
His father is ready to stand surety for him, and to ensure that he does not return to the area where the offence is alleged to have been committed.
I have carefully considered the new application for bond.
The issue is whether the application is merited.
while denying the accused person’s application for bond the court had stated and I reiterate:
Bail is a constitutional right of every citizen. Article 49(1) (h) of the Constitution is explicit that, unless there is some compelling reason, an accused person, be he a citizen or foreigner, ought to be released on bail, as a matter of right, pending the hearing and determination of his case. It provides that:
“An arrested person has the right … to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released.”
Accordingly, Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates 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 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. That 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.
And, in the Bail and Bond Policy Guidelines, it is restated as a general guideline in Paragraph 4.9 that:
“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining, the existence of compelling reasons for denying of an accused person bail, particularly in serious offences.”
The guidelines then offer the following non-exhaustive factors for consideration in bail applications:
a. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
b. The strength of the prosecution case.
c. The character and antecedents of the accused person.
d. The failure of the accused person to observe bail or bond terms.
e. The likelihood of interfering with witnesses.
f. The need to protect the victim or victims of the crime.
g. The relationship between the accused person and the potential witnesses.
h. The best interest of child offenders.
i. The accused person is a flight risk.
j. Whether the accused person is gainfully employed.
k. Public order, peace and security.
l. Protection of the accused persons.
The overarching objective of bail is to ensure the accused attends his trial. Relevant matters to be considered by the court include the nature of the charge, the likely sentence, previous criminal records, the views of the family of the victim, the possibility of interference with witnesses, the temptation to abscond and the safety of the accused .
I have taken into account all the foregoing guidelines.
I have considered that the prosecution has not objected this time, meaning that the fear that existed before with respect to witnesses has abated.
Regarding the reasons in the Probation and After Care Services report, the Probation and After Care Services officer must be aware that the failure by an accused person or his family to approach the family of the deceased for reconciliation cannot be a reason to deny the accused bond, that must be made clear to the victims when they are being interviewed. The accused person is not obligated to do so.
An accused person is presumed innocent until proven guilty, as per Article 50 (2)(a) of the Constitution which states that ;Every accused person has the right to a fair trial, which includes the right— (a) to be presumed innocent until the contrary is proved ; and it is not in order for the Probation and After Care Services officer to create that impression in the family of the victim. That is not an issue that should appear in a Pre Bail Report.
That besides, the accused person has a prospective surety and is willing to live elsewhere, away from the scene of the alleged crime. In the circumstances his application has merit.
His application for bond is allowed on the following terms.
Bond is set at kshs. 300,000/= with surety of similar amount.
The conditions are that he will remain away from the area of the offence until the matter is finalized, and avail himself to court as and when required to do so.
RULING Dated, signed and delivered in open court at Eldama Ravine this 20 th May 2026
Mumbua T. Matheka
Judge
In the presence of:-
CA Karanja
Accused Present Virtually
Counsel for Accused Ms. Barasah
For State Ms. Omari
Ruling on Bond HCCRC E008 of 2025 Page 2 of 2