REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL CASE NO. E004 OF 2026
(CORAM: HON. CHARLES M. KARIUKI – J)
REPUBLIC…………………………………………………………PROSECUTOR
VERSUS
BRIAN MAKORI KEGONGE….....…..………………………………. ACCUSED
RULING
29/06/2026
BOND/BAIL APPLICATION
A. INTRODUCTION
1. The accused person, Brian Makori Kegonge, is charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the charge are that on 3 rd April 2026 at Ndoluo Centre in Transmara South Sub-County within Narok County, he murdered Mary Atieno.
2. Upon taking plea on 6 th May 2026, the accused pleaded not guilty and, through learned counsel, Mr Nyaata, applied to be admitted to bond on reasonable terms pending trial.
3. The prosecution opposed the application through the affidavit of No. 74570 Cpl. John Njogu, the investigating officer. The prosecution contends that immediately after the commission of the offence, the accused disappeared from the area and was only arrested while in hiding. It is therefore argued that there exists a real likelihood that he may abscond if released on bond.
4. The prosecution further contends that most of the intended prosecution witnesses are yet to testify and are vulnerable to intimidation, influence, or interference by the accused. It is also deposed that the accused has weak community ties, lacks a fixed abode, and was arrested while hiding, factors which allegedly heighten the risk of absconding.
5. In addition, the prosecution relies on the seriousness of the charge and the alleged strength of the evidence against the accused, arguing that the likelihood of conviction may motivate him to flee from the jurisdiction of the court.
6. The court also called for a Bail Information Report from the Probation and Aftercare Service. The report dated 25 th May 2026 paints a picture of an accused person who comes from a dysfunctional family background, has weak social and community ties, has a history of shifting residences, and has no identified surety willing to stand bond for him. The report further indicates that the accused engages in alcohol consumption and brewing illicit liquor, and that both the victim's family and members of the local community oppose his release on bond.
7. The victim's family expressed fears that the accused may abscond or interfere with witnesses if released, thereby undermining the course of justice. The probation officer ultimately recommended that the accused should not be released on bond at this stage because he presents a high flight risk and lacks sufficient social anchors within the community.
8. The issue for determination is whether the prosecution and the victims have established compelling reasons within the meaning of Article 49(1)(h) of the Constitution to justify the denial of bond pending trial.
B. ISSUES FOR DETERMINATION
9. Having considered the application, the affidavit of the Investigating Officer, the Victim Impact Statement, the submissions by counsel for the accused, and the prosecution, the following issue arises for determination:
i. Whether the prosecution and the victims have established compelling reasons within the meaning of Article 49(1)(h) of the Constitution sufficient to warrant denial of bond pending trial.
C. ANALYSIS AND DETERMINATION
10. The right to bail or bond is guaranteed under Article 49(1)(h) of the Constitution of Kenya, 2010, which 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.”
11. The constitutional position, therefore, is that release on bail is the norm while detention before trial is the exception. The burden rests upon the prosecution to demonstrate the existence of compelling reasons warranting denial of that constitutional right.
12. In Republic v Danson Mgunya & Another [2010] eKLR, Ibrahim J. (as he then was) held that bail is a constitutional right and that the prosecution bears the burden of proving the existence of compelling reasons. The court further stated that such reasons must be forceful, convincing, and capable of persuading the court to curtail an otherwise guaranteed constitutional liberty.
13. Similarly, in Republic v Joktan Mayende & 3 Others [2012] eKLR, the court held that compelling reasons must be demonstrated through cogent evidence and not mere speculation, suspicion, or generalised fears.
14. The Bail and Bond Policy Guidelines, 2015, identify several factors that may amount to compelling reasons, including the likelihood that the accused may fail to attend court, interfere with witnesses, commit further offences, or endanger public order and security.
15. In the present case, the first issue concerns the likelihood of absconding. The investigating officer depones that immediately after the commission of the alleged offence, the accused disappeared from the locality and was subsequently traced and arrested while hiding. This assertion has not been controverted.
16. The Probation Officer's Report corroborates this concern. The report reveals that the accused has a history of moving from place to place, first from Kisii to Nyamira and later to Transmara, with no clearly established permanent residence. The report specifically concludes that the accused exhibits high locality turnover tendencies and that his fixed abode has not been established.
17. The court further notes that no relative has come forward to stand surety for the accused. Significantly, even the accused's father declined to support his release and informed the probation officer that the accused should "fight his own battles." The report further indicates that no potential surety has been identified.
18. The Court of Appeal in Michael Juma Oyamo & Another v Republic [2019] eKLR observed that the primary consideration in bail applications is whether the accused will attend trial. Where circumstances demonstrate a substantial likelihood of absconding, the court is entitled to decline bail.
19. In the present case, the accused's disappearance immediately after the alleged offence, coupled with the absence of a fixed abode, weak family support, lack of identified sureties, and the probation officer's assessment that he constitutes a high flight risk, collectively constitute strong indicators that his attendance at trial cannot presently be guaranteed.
20. The second issue concerns possible interference with witnesses. The prosecution asserts that most of the intended witnesses are yet to testify and are vulnerable to intimidation or influence. The victim's family similarly expressed fears that the accused may interfere with witnesses if released.
21. It is true that allegations of witness interference must ordinarily be supported by credible evidence. In Republic v Fredrick Ole Leliman & 4 Others [2016] eKLR , the court held that witness interference is a compelling reason where there is evidence of actual or perceived attempts to influence witnesses.
22. Although there is no evidence of actual interference in the present case, the court notes that the majority of witnesses are yet to testify and that the accused and the deceased were known to each other and lived within the same locality. This factor, while not sufficient on its own to deny bail, reinforces the concerns raised by the prosecution and the victim's family.
23. The court has also considered the seriousness of the charge. While the gravity of an offence alone is not a compelling reason for denial of bail, it remains a relevant factor when considered alongside other circumstances. In Republic v Richard David Alden [2016] eKLR , the court held that the seriousness of the charge is not, by itself, sufficient to deny bail, but may be considered together with other relevant factors, such as flight risk.
24. The court is mindful that the presumption of innocence under Article 50(2)(a) of the Constitution remains intact and that the accused cannot be punished before conviction. Nevertheless, the constitutional right to bail is not absolute and may be limited where compelling reasons are established.
25. Having carefully evaluated the affidavit evidence, the Bail Information Report, the victim impact concerns, and the applicable legal principles, this court is persuaded that the prosecution has established compelling reasons, particularly the substantial risk of absconding. The accused's conduct immediately after the alleged offence, his weak social and family ties, absence of a fixed abode, lack of a willing surety, and the professional assessment by the Probation Officer that he presents a high flight risk collectively satisfy the threshold contemplated under Article 49(1)(h) of the Constitution.
26. Consequently, the court finds that the interests of justice presently outweigh the accused's right to release on bond pending trial.
D. DISPOSITION
27. Accordingly, the application for release on bond pending trial is hereby declined.
28. The accused shall remain in lawful custody pending the hearing and determination of the case.
29. For avoidance of doubt, the accused shall be at liberty to renew the application for bond after key prosecution witnesses have testified or upon demonstration of changed circumstances.
30. Orders accordingly.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 29 TH DAY OF JULY 2026
CHARLES KARIUKI
JUDGE
KILGORIS HCCRC NO. E004 OF 2026 Page 2 of 2
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL CASE NO. E004 OF 2026
(CORAM: HON. CHARLES M. KARIUKI – J)
REPUBLIC…………………………………………………………PROSECUTOR
VERSUS
BRIAN MAKORI KEGONGE….....…..………………………………. ACCUSED
RULING
29/06/2026
BOND/BAIL APPLICATION
A. INTRODUCTION
1. The accused person, Brian Makori Kegonge, is charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the charge are that on 3 rd April 2026 at Ndoluo Centre in Transmara South Sub-County within Narok County, he murdered Mary Atieno.
2. Upon taking plea on 6 th May 2026, the accused pleaded not guilty and, through learned counsel, Mr Nyaata, applied to be admitted to bond on reasonable terms pending trial.
3. The prosecution opposed the application through the affidavit of No. 74570 Cpl. John Njogu, the investigating officer. The prosecution contends that immediately after the commission of the offence, the accused disappeared from the area and was only arrested while in hiding. It is therefore argued that there exists a real likelihood that he may abscond if released on bond.
4. The prosecution further contends that most of the intended prosecution witnesses are yet to testify and are vulnerable to intimidation, influence, or interference by the accused. It is also deposed that the accused has weak community ties, lacks a fixed abode, and was arrested while hiding, factors which allegedly heighten the risk of absconding.
5. In addition, the prosecution relies on the seriousness of the charge and the alleged strength of the evidence against the accused, arguing that the likelihood of conviction may motivate him to flee from the jurisdiction of the court.
6. The court also called for a Bail Information Report from the Probation and Aftercare Service. The report dated 25 th May 2026 paints a picture of an accused person who comes from a dysfunctional family background, has weak social and community ties, has a history of shifting residences, and has no identified surety willing to stand bond for him. The report further indicates that the accused engages in alcohol consumption and brewing illicit liquor, and that both the victim's family and members of the local community oppose his release on bond.
7. The victim's family expressed fears that the accused may abscond or interfere with witnesses if released, thereby undermining the course of justice. The probation officer ultimately recommended that the accused should not be released on bond at this stage because he presents a high flight risk and lacks sufficient social anchors within the community.
8. The issue for determination is whether the prosecution and the victims have established compelling reasons within the meaning of Article 49(1)(h) of the Constitution to justify the denial of bond pending trial.
B. ISSUES FOR DETERMINATION
9. Having considered the application, the affidavit of the Investigating Officer, the Victim Impact Statement, the submissions by counsel for the accused, and the prosecution, the following issue arises for determination:
i. Whether the prosecution and the victims have established compelling reasons within the meaning of Article 49(1)(h) of the Constitution sufficient to warrant denial of bond pending trial.
C. ANALYSIS AND DETERMINATION
10. The right to bail or bond is guaranteed under Article 49(1)(h) of the Constitution of Kenya, 2010, which 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.”
11. The constitutional position, therefore, is that release on bail is the norm while detention before trial is the exception. The burden rests upon the prosecution to demonstrate the existence of compelling reasons warranting denial of that constitutional right.
12. In Republic v Danson Mgunya & Another [2010] eKLR, Ibrahim J. (as he then was) held that bail is a constitutional right and that the prosecution bears the burden of proving the existence of compelling reasons. The court further stated that such reasons must be forceful, convincing, and capable of persuading the court to curtail an otherwise guaranteed constitutional liberty.
13. Similarly, in Republic v Joktan Mayende & 3 Others [2012] eKLR, the court held that compelling reasons must be demonstrated through cogent evidence and not mere speculation, suspicion, or generalised fears.
14. The Bail and Bond Policy Guidelines, 2015, identify several factors that may amount to compelling reasons, including the likelihood that the accused may fail to attend court, interfere with witnesses, commit further offences, or endanger public order and security.
15. In the present case, the first issue concerns the likelihood of absconding. The investigating officer depones that immediately after the commission of the alleged offence, the accused disappeared from the locality and was subsequently traced and arrested while hiding. This assertion has not been controverted.
16. The Probation Officer's Report corroborates this concern. The report reveals that the accused has a history of moving from place to place, first from Kisii to Nyamira and later to Transmara, with no clearly established permanent residence. The report specifically concludes that the accused exhibits high locality turnover tendencies and that his fixed abode has not been established.
17. The court further notes that no relative has come forward to stand surety for the accused. Significantly, even the accused's father declined to support his release and informed the probation officer that the accused should "fight his own battles." The report further indicates that no potential surety has been identified.
18. The Court of Appeal in Michael Juma Oyamo & Another v Republic [2019] eKLR observed that the primary consideration in bail applications is whether the accused will attend trial. Where circumstances demonstrate a substantial likelihood of absconding, the court is entitled to decline bail.
19. In the present case, the accused's disappearance immediately after the alleged offence, coupled with the absence of a fixed abode, weak family support, lack of identified sureties, and the probation officer's assessment that he constitutes a high flight risk, collectively constitute strong indicators that his attendance at trial cannot presently be guaranteed.
20. The second issue concerns possible interference with witnesses. The prosecution asserts that most of the intended witnesses are yet to testify and are vulnerable to intimidation or influence. The victim's family similarly expressed fears that the accused may interfere with witnesses if released.
21. It is true that allegations of witness interference must ordinarily be supported by credible evidence. In Republic v Fredrick Ole Leliman & 4 Others [2016] eKLR , the court held that witness interference is a compelling reason where there is evidence of actual or perceived attempts to influence witnesses.
22. Although there is no evidence of actual interference in the present case, the court notes that the majority of witnesses are yet to testify and that the accused and the deceased were known to each other and lived within the same locality. This factor, while not sufficient on its own to deny bail, reinforces the concerns raised by the prosecution and the victim's family.
23. The court has also considered the seriousness of the charge. While the gravity of an offence alone is not a compelling reason for denial of bail, it remains a relevant factor when considered alongside other circumstances. In Republic v Richard David Alden [2016] eKLR , the court held that the seriousness of the charge is not, by itself, sufficient to deny bail, but may be considered together with other relevant factors, such as flight risk.
24. The court is mindful that the presumption of innocence under Article 50(2)(a) of the Constitution remains intact and that the accused cannot be punished before conviction. Nevertheless, the constitutional right to bail is not absolute and may be limited where compelling reasons are established.
25. Having carefully evaluated the affidavit evidence, the Bail Information Report, the victim impact concerns, and the applicable legal principles, this court is persuaded that the prosecution has established compelling reasons, particularly the substantial risk of absconding. The accused's conduct immediately after the alleged offence, his weak social and family ties, absence of a fixed abode, lack of a willing surety, and the professional assessment by the Probation Officer that he presents a high flight risk collectively satisfy the threshold contemplated under Article 49(1)(h) of the Constitution.
26. Consequently, the court finds that the interests of justice presently outweigh the accused's right to release on bond pending trial.
D. DISPOSITION
27. Accordingly, the application for release on bond pending trial is hereby declined.
28. The accused shall remain in lawful custody pending the hearing and determination of the case.
29. For avoidance of doubt, the accused shall be at liberty to renew the application for bond after key prosecution witnesses have testified or upon demonstration of changed circumstances.
30. Orders accordingly.
DATED, SIGNED, AND DELIVERED AT KILGORIS, THIS 29 TH DAY OF JULY 2026
CHARLES KARIUKI
JUDGE
KILGORIS HCCRC NO. E004 OF 2026 Page 2 of 2