Coram: Before Justice R. Nyakundi
M/s Leina for the State
Mr. Wekesa Advocate for the Accused
RULING
1. The accused person before this Court was charged of murder contrary to
Section 203 as read with 204 of the Penal Code Cap 63 Laws of Kenya. The
particulars of the offence were that on the 10th day of April 2021 at Elwambilo
village, Sunrise Sub Location Maseno location, Luanda Sub County within
Vihiga County jointly with others not before Court unlawfully murdered Caleb
Ndanyi.
2. The accused person denied the charges and was represented by Mr. Wekesa
in his defence. In the pretrial conference an application was made to release
the accused on bail pending trial under Article 49 (1)(h) of the Constitution
which provided as follows:
“To be released on bond or bail, on reasonable conditions, pending a charge
or trial, unless there are compelling reasons not to be released”.
3. In our criminal justice system consistently, Courts have emphasized that bail
is the rule while jail is the exception. The reasons for this are that the rights
and fundamental freedom of the citizens of Kenya, as anchored in Chapter 4
of the Constitution provides the framework upon which personal liberty under
Article 29 of the Constitution must be protected and guaranteed for even
those who are accused to have committed offence under our statutory
provisions. There is also Article 50(2)(a) of the Constitution which provides
that every accused person is presumed innocent unless the contrary is proved
and that proof is usually beyond reasonable doubt. The purposive
interpretation of Article 49(1)(h) of the Constitution is to reaffirm that bail
should not be withheld as a form of punishment and that pretrial detention
should not be used as a punitive measure by the State organs to detain a
suspect of an offence.
4. In deciding whether to grant bail trial Courts and High Courts have evaluated
various circumstances and came up with various factors upon which judicial
discretion is to exercised:
• Gravity and Nature of the Offense: The severity of the accusation, the
manner in which the crime was committed, and the potential punishment
upon conviction.
• Prima Facie Case: Whether there are reasonable, credible grounds to
believe the accused committed the offense.
• Risk of Flight: The danger of the accused absconding or fleeing the
jurisdiction of the Court to evade trial.
• Tampering and Intimidation: The likelihood of the accused influencing,
threatening, or tampering with witnesses or evidence.
• Antecedents and Character: The accused's criminal history, societal
standing, behavior, and means.
• Social and Public Interest: The larger interest of public safety and
whether releasing the accused could disrupt the peace or be repeated.
• gravity and severity of the offence
• nature of accusation,
• severity of punishment,
• position and status of the accused,
• possibility of or opportunity to approach the victims/witnesses or
pressuring them,
• likelihood of the accused fleeing away from justice,
• possibility of tampering with evidence or pressurizing witnesses,
• likelihood of obstructing the course of justice,
• possibility of repetition of offence,
• prima facie satisfaction of Court in support of charge including possibility
of charge being false or false implication,
• peculiar facts of each case and nature of supporting evidence,
• antecedents of accused, his character and behaviour, his standing in
society, circumstances which are peculiar to accused,
• larger interest of the public welfare and safety
5. The law relating to grant of bail in Kenya is very subjective. The criteria to
determine or foresee if bail in a case would be granted or refused is nowhere
laid down in black and white. I hold the view that the area is hence a grey
area although there are many decisions which attempt to assess the standard
parameters that should be kept in mind by Courts when deciding bail in
individual cases. However, as an underlying principle at the outset it must be
stated that at all material times trial Courts must strike a balance between
the rights of an accused person in his/her liberty and interests of society at
large in keeping him/her confined pending trial.
6. It is also interesting to note that the meaning and concept to bail is rarely
never rarely defined under the CPC but the definition finds its way in the
Bond and Bail Policy of Kenya. It means brief release of a person accused of
or suspected of commision of an offence from the custody of law upon certain
conditions imposed by Judicial Officer or a trial Court on execution by such
person of a bond or as bail bond within the provisions of the Criminal
Procedure Code.
7. The following are leading cases which outline the principles for grant or denial
of bail. Thus, in R v Irungu alias Jowie & Another Cr. Case 51 of 2018
[2020] KEHC 8361 (KLR) (Crim) remarked that:
“Whereas it is clear that the Court has discretion to grant bail at any stage
during trial, when the application for bail is made during the course of trial,
one of the compelling reasons which the Court has to take into account is
the strength of the prosecution, as provided for under the Bail and Bond
Policy Guidelines at 4.9 (b) as follows:-“An accused person should not be
subjected to pre-trial detention where the evidence against him or her is
tenuous, even if the charge is serious. Conversely, it may be justifiable to
subject an accused person to pre-trial detention where the evidence against
the accused person is strong. For example, where all the prosecution
witnesses have testified and the accused person is aware of the weight of
the prosecution’s case against him or her, it is presumed that such a person
has an incentive to abscond as should therefore be denied bail – see
Republic v Margaret Nyaguthi Kimeu [2013] eKLR. In addition, the strength
of the prosecution case in itself, alone is not a good ground to deny an
accused person the enjoyment of his constitutional right to bail. It must be
demonstrated that by virtue of the strength of the prosecution case, there is
a great incentive on the part of the accused person to abscond so as to defeat
the course of justice. At this stage the Court is not expected to go into the
merit of the case. In making the said determination, the Court must always
balance between the conflicting interest of the State to bring offenders to
trial and to dispense justice and the protection of the right of citizens, and
the presumption of innocence, which require that no one without justification
should be deprived of personal liberty.”
8. Further in the case of Republic versus Mbiti Munguti (2020) eKLR, where
Justice Odunga observed as follows:
“From the constitutional point of view, however, an accused person has the
right to be released on bond or bail, on reasonable conditions pending a
charge or trial. Therefore, the accused does not have to apply for release on
bond since a person on whom rights have been bestowed under the
Constitution is not obliged to ask for the same. This right can only be limited
where it is shown that there exist compelling reasons not to be released.
Those compelling reasons include the ones set out hereinabove. It is however
my view that the burden to prove the existence of the said compelling
reasons falls squarely on the prosecution.”
9. In the instant case the prosecution did not propose on release of the accused
person on bail and the Probation Officer’s Report was also responsive covering
various grounds on; on accused’s family background, accused’s personal
history, drugs and substance abuse, previous adherence to bond/bail terms,
seriousness of the offence, victim’s family concerns, communities ties, and
bond/bail sureties and securities. It is against this background, the Probation
Officer arrived at this conclusion: That the social inquiry established that the
accused has strong family and community ties, derives his livelihood from
lawful employment, has no previous criminal record, and has no history of
violating Court orders. He is well integrated within his community and enjoys
the support of his immediate family, relatives, friends, and local administration.
The inquiry further established that although the offence before the Court is
serious, the accused has remained within the community since the alleged
incident in 2021 without engaging in conduct suggestive of flight, witness
intimidation, or any threat to public safety. The community inclusive of the
neighbors and Local Administration did not raise any objection to his release
on bond, and thus there is no hostility was established. Based on the
information gathered during the inquiry, the accused does not appear to present
any substantial flight risk or a risk to the administration of justice.
10. It is a well-known principle that the grant or refusal of bail is a discretional
decision under judicial control and Judicial Officers across all levels of Courts
have the ultimate judicial discretion as to whether or not in the circumstances
of a particular case bail should be granted. The factors which the Court ought
to take into account in determining bail must be grounds which fall within
the compelling reasons stipulated in Article 49(1) (h) of the Constitution and
if there is any denial of bail it is underpinned upon the concept of justice.
According to the record, considering the evidence that has been tendered
before this Court I am of the view that it was in the interest of justice that the
accused person be released on bail which is now hereby set at Kshs 1,000,000
with a surety of similar amount. The surety has filed his statement of
motivation annexed to it is the nature of the security offered to enter
cognizance with the Court as one of the conditions precedent for grant of bail
in this case. In this respect, he has offered motor Registration No. KDH 845X,
make fielder, year of manufacture, Engine No. NR-8733868, Chasis No.
NRE161-8024574 and the registered owner is none other than Fredrick
Aluchio Oyungu Seka a surety found suitable by this Court as provided for
under the Criminal Procedure Code provisions on bail and surety. It follows
therefore that the Deputy Registrar of the High Court shall cause a caution
or restriction to be entered in the registration register of this motor vehicle
with the NTSA so that no transactions to dispose of it shall be effected during
the pendency of this trial and without leave of the Court.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.
M/s Leina for the State
Mr. Wekesa Advocate for the Accused
RULING
1. The accused person before this Court was charged of murder contrary to
Section 203 as read with 204 of the Penal Code Cap 63 Laws of Kenya. The
particulars of the offence were that on the 10th day of April 2021 at Elwambilo
village, Sunrise Sub Location Maseno location, Luanda Sub County within
Vihiga County jointly with others not before Court unlawfully murdered Caleb
Ndanyi.
2. The accused person denied the charges and was represented by Mr. Wekesa
in his defence. In the pretrial conference an application was made to release
the accused on bail pending trial under Article 49 (1)(h) of the Constitution
which provided as follows:
“To be released on bond or bail, on reasonable conditions, pending a charge
or trial, unless there are compelling reasons not to be released”.
3. In our criminal justice system consistently, Courts have emphasized that bail
is the rule while jail is the exception. The reasons for this are that the rights
and fundamental freedom of the citizens of Kenya, as anchored in Chapter 4
of the Constitution provides the framework upon which personal liberty under
Article 29 of the Constitution must be protected and guaranteed for even
those who are accused to have committed offence under our statutory
provisions. There is also Article 50(2)(a) of the Constitution which provides
that every accused person is presumed innocent unless the contrary is proved
and that proof is usually beyond reasonable doubt. The purposive
interpretation of Article 49(1)(h) of the Constitution is to reaffirm that bail
should not be withheld as a form of punishment and that pretrial detention
should not be used as a punitive measure by the State organs to detain a
suspect of an offence.
4. In deciding whether to grant bail trial Courts and High Courts have evaluated
various circumstances and came up with various factors upon which judicial
discretion is to exercised:
• Gravity and Nature of the Offense: The severity of the accusation, the
manner in which the crime was committed, and the potential punishment
upon conviction.
• Prima Facie Case: Whether there are reasonable, credible grounds to
believe the accused committed the offense.
• Risk of Flight: The danger of the accused absconding or fleeing the
jurisdiction of the Court to evade trial.
• Tampering and Intimidation: The likelihood of the accused influencing,
threatening, or tampering with witnesses or evidence.
• Antecedents and Character: The accused's criminal history, societal
standing, behavior, and means.
• Social and Public Interest: The larger interest of public safety and
whether releasing the accused could disrupt the peace or be repeated.
• gravity and severity of the offence
• nature of accusation,
• severity of punishment,
• position and status of the accused,
• possibility of or opportunity to approach the victims/witnesses or
pressuring them,
• likelihood of the accused fleeing away from justice,
• possibility of tampering with evidence or pressurizing witnesses,
• likelihood of obstructing the course of justice,
• possibility of repetition of offence,
• prima facie satisfaction of Court in support of charge including possibility
of charge being false or false implication,
• peculiar facts of each case and nature of supporting evidence,
• antecedents of accused, his character and behaviour, his standing in
society, circumstances which are peculiar to accused,
• larger interest of the public welfare and safety
5. The law relating to grant of bail in Kenya is very subjective. The criteria to
determine or foresee if bail in a case would be granted or refused is nowhere
laid down in black and white. I hold the view that the area is hence a grey
area although there are many decisions which attempt to assess the standard
parameters that should be kept in mind by Courts when deciding bail in
individual cases. However, as an underlying principle at the outset it must be
stated that at all material times trial Courts must strike a balance between
the rights of an accused person in his/her liberty and interests of society at
large in keeping him/her confined pending trial.
6. It is also interesting to note that the meaning and concept to bail is rarely
never rarely defined under the CPC but the definition finds its way in the
Bond and Bail Policy of Kenya. It means brief release of a person accused of
or suspected of commision of an offence from the custody of law upon certain
conditions imposed by Judicial Officer or a trial Court on execution by such
person of a bond or as bail bond within the provisions of the Criminal
Procedure Code.
7. The following are leading cases which outline the principles for grant or denial
of bail. Thus, in R v Irungu alias Jowie & Another Cr. Case 51 of 2018
[2020] KEHC 8361 (KLR) (Crim) remarked that:
“Whereas it is clear that the Court has discretion to grant bail at any stage
during trial, when the application for bail is made during the course of trial,
one of the compelling reasons which the Court has to take into account is
the strength of the prosecution, as provided for under the Bail and Bond
Policy Guidelines at 4.9 (b) as follows:-“An accused person should not be
subjected to pre-trial detention where the evidence against him or her is
tenuous, even if the charge is serious. Conversely, it may be justifiable to
subject an accused person to pre-trial detention where the evidence against
the accused person is strong. For example, where all the prosecution
witnesses have testified and the accused person is aware of the weight of
the prosecution’s case against him or her, it is presumed that such a person
has an incentive to abscond as should therefore be denied bail – see
Republic v Margaret Nyaguthi Kimeu [2013] eKLR. In addition, the strength
of the prosecution case in itself, alone is not a good ground to deny an
accused person the enjoyment of his constitutional right to bail. It must be
demonstrated that by virtue of the strength of the prosecution case, there is
a great incentive on the part of the accused person to abscond so as to defeat
the course of justice. At this stage the Court is not expected to go into the
merit of the case. In making the said determination, the Court must always
balance between the conflicting interest of the State to bring offenders to
trial and to dispense justice and the protection of the right of citizens, and
the presumption of innocence, which require that no one without justification
should be deprived of personal liberty.”
8. Further in the case of Republic versus Mbiti Munguti (2020) eKLR, where
Justice Odunga observed as follows:
“From the constitutional point of view, however, an accused person has the
right to be released on bond or bail, on reasonable conditions pending a
charge or trial. Therefore, the accused does not have to apply for release on
bond since a person on whom rights have been bestowed under the
Constitution is not obliged to ask for the same. This right can only be limited
where it is shown that there exist compelling reasons not to be released.
Those compelling reasons include the ones set out hereinabove. It is however
my view that the burden to prove the existence of the said compelling
reasons falls squarely on the prosecution.”
9. In the instant case the prosecution did not propose on release of the accused
person on bail and the Probation Officer’s Report was also responsive covering
various grounds on; on accused’s family background, accused’s personal
history, drugs and substance abuse, previous adherence to bond/bail terms,
seriousness of the offence, victim’s family concerns, communities ties, and
bond/bail sureties and securities. It is against this background, the Probation
Officer arrived at this conclusion: That the social inquiry established that the
accused has strong family and community ties, derives his livelihood from
lawful employment, has no previous criminal record, and has no history of
violating Court orders. He is well integrated within his community and enjoys
the support of his immediate family, relatives, friends, and local administration.
The inquiry further established that although the offence before the Court is
serious, the accused has remained within the community since the alleged
incident in 2021 without engaging in conduct suggestive of flight, witness
intimidation, or any threat to public safety. The community inclusive of the
neighbors and Local Administration did not raise any objection to his release
on bond, and thus there is no hostility was established. Based on the
information gathered during the inquiry, the accused does not appear to present
any substantial flight risk or a risk to the administration of justice.
10. It is a well-known principle that the grant or refusal of bail is a discretional
decision under judicial control and Judicial Officers across all levels of Courts
have the ultimate judicial discretion as to whether or not in the circumstances
of a particular case bail should be granted. The factors which the Court ought
to take into account in determining bail must be grounds which fall within
the compelling reasons stipulated in Article 49(1) (h) of the Constitution and
if there is any denial of bail it is underpinned upon the concept of justice.
According to the record, considering the evidence that has been tendered
before this Court I am of the view that it was in the interest of justice that the
accused person be released on bail which is now hereby set at Kshs 1,000,000
with a surety of similar amount. The surety has filed his statement of
motivation annexed to it is the nature of the security offered to enter
cognizance with the Court as one of the conditions precedent for grant of bail
in this case. In this respect, he has offered motor Registration No. KDH 845X,
make fielder, year of manufacture, Engine No. NR-8733868, Chasis No.
NRE161-8024574 and the registered owner is none other than Fredrick
Aluchio Oyungu Seka a surety found suitable by this Court as provided for
under the Criminal Procedure Code provisions on bail and surety. It follows
therefore that the Deputy Registrar of the High Court shall cause a caution
or restriction to be entered in the registration register of this motor vehicle
with the NTSA so that no transactions to dispose of it shall be effected during
the pendency of this trial and without leave of the Court.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.