1. The accused herein, faces the charge of Murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) Laws of Kenya for which a plea of not guilty was entered. The particulars of the charge were that on 25th November 2024 at Kamaingon Sub Location in Keiyo North Sub-County in Elgeyo Marakwet County, she murdered one Emily Chebet Cheboswony.
2. The accused through her Counsel Mr Sonkule applied to be released on bond on reasonable terms pending the hearing and final determination of this case. Counsel relied on the provisions of Article 49(1)(h) of the Constitution and Section 123 of the Criminal Procedure Code. The bail application was not opposed by prosecution who only sought that a Pre Bail Report be availed to guide the Court in determining bond and the same dated 16th January 2025 was availed.
3. The no objection by the prosecution notwithstanding however, the Pre-Bail Report filed recommends that the accused person is not suitable for release on bond at the moment because in the view of the family of the deceased, it is too would be too soon after their kin was murdered and they are still hurting and that they are also as yet to sit as a family and attempt a reconciliation in line with their cultural rites and norms.
Determination
4. I have considered the application and the affidavit in opposition thereto as well as the submissions made. Bail is a constitutional right. Article 49(1)(h) of the Constitution provides that: -
An accused 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.
5. Also, by dint of Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence.
6. The provisions of Article 49(1)(h) notwithstanding, it is to be noted that right to bail is not absolute and where there are compelling reasons the said may be restricted. The onus is upon Prosecution to demonstrate by way of an Affidavit sworn by the Investigating Officer that there exist compelling reasons to deny an accused person bail. All said and done however, the final determination on whether or not to grant bond is a discretion of the court and in exercising this discretion, the court must strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice.
7. In this case, the court notes that the prosecution is not opposed to the release of the accused on bond. It has also not availed any reasons at all, compelling or otherwise stating that the accused person is not fit to be released on bond. I have noted the contents of the pre-bail report which states that the accused is a single mother if three children. It also states that the family of the deceased is opposed to the release of the accused on bond for reasons that the accused and the deceased were cousins and as a family they have not yet had time to sit and talk and do the necessary cultural rites and further that they need time to heal.
8. In my considered opinion, the reasons given are not sufficiently compelling to warrant the denial of bond to the accused person and more particularly because the findings in a pre-bail report are not binding on the court. Such a report is basically meant to be a social inquiry report made at the request and on behalf of the court and is only meant to guide the court reach a more informed decision. I therefore allow the application for bond and direct that the accused be released on a Personal Bond of Ks. 400,000/- plus 1 surety of like amount. Right of Appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025
2. The accused through her Counsel Mr Sonkule applied to be released on bond on reasonable terms pending the hearing and final determination of this case. Counsel relied on the provisions of Article 49(1)(h) of the Constitution and Section 123 of the Criminal Procedure Code. The bail application was not opposed by prosecution who only sought that a Pre Bail Report be availed to guide the Court in determining bond and the same dated 16th January 2025 was availed.
3. The no objection by the prosecution notwithstanding however, the Pre-Bail Report filed recommends that the accused person is not suitable for release on bond at the moment because in the view of the family of the deceased, it is too would be too soon after their kin was murdered and they are still hurting and that they are also as yet to sit as a family and attempt a reconciliation in line with their cultural rites and norms.
Determination
4. I have considered the application and the affidavit in opposition thereto as well as the submissions made. Bail is a constitutional right. Article 49(1)(h) of the Constitution provides that: -
An accused 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.
5. Also, by dint of Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence.
6. The provisions of Article 49(1)(h) notwithstanding, it is to be noted that right to bail is not absolute and where there are compelling reasons the said may be restricted. The onus is upon Prosecution to demonstrate by way of an Affidavit sworn by the Investigating Officer that there exist compelling reasons to deny an accused person bail. All said and done however, the final determination on whether or not to grant bond is a discretion of the court and in exercising this discretion, the court must strike a balance between protecting the liberty of the individual and safeguarding the proper administration of justice.
7. In this case, the court notes that the prosecution is not opposed to the release of the accused on bond. It has also not availed any reasons at all, compelling or otherwise stating that the accused person is not fit to be released on bond. I have noted the contents of the pre-bail report which states that the accused is a single mother if three children. It also states that the family of the deceased is opposed to the release of the accused on bond for reasons that the accused and the deceased were cousins and as a family they have not yet had time to sit and talk and do the necessary cultural rites and further that they need time to heal.
8. In my considered opinion, the reasons given are not sufficiently compelling to warrant the denial of bond to the accused person and more particularly because the findings in a pre-bail report are not binding on the court. Such a report is basically meant to be a social inquiry report made at the request and on behalf of the court and is only meant to guide the court reach a more informed decision. I therefore allow the application for bond and direct that the accused be released on a Personal Bond of Ks. 400,000/- plus 1 surety of like amount. Right of Appeal 14 days.
Read Dated and Signed at ITEN on 3rd April 2025