1. The accused person is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 28/10/2024, at Enou sub location, Murkutwa location in Keiyo valley sub county, Elgeyo Marakwet County, together with others not before the court, he unlawfully murdered Jonah Kimaiyo Kipchumba.
2. The accused was subjected to a mental health assessment test and was found fit to take plea. He pleaded not guilty and through his Counsel Mr. Ayora applied that he be released on bond. The court directed that a Pre-bail report be filed to ascertain the circumstances pertaining on the ground so as to guide the court on whether the release of the accused on bond is appropriate. The prosecution did not file any response to the application for bail but were agreeable that the court be guided by the Pre-Bail Report. A Pre Bail report dated 17/12/2024 was filed by the Probation Officer, Elgeyo Marakwet County.
Pre bail report
3. The said report states that the victim of the offence was the brother to the accused person and he was given a befitting send-off. Further, he reported that the family has come to terms with the death of the victim. The accused person was their only source of income and security as he was a police reservist and as such, armed to protect them against Pokot raiders. The report states that the community members, through the clan elder echo the sentiments that he should be granted bond and further that there is no objection as he is not seen as a threat to the security of the area.
4. The probation officer recommended that there are no compelling reasons as to why the accused should be denied bond and recommended that he is suitable for bail terms.
5. 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.
6. Hon Justice Mohamed Ibrahim J (as he then was) in Republic vs. John Kahindi Karisa & 2 Others [2010] eKLR stated as follows on the right to bond under the Constitution of Kenya 2010;
“This Constitutional provision came into force after the promulgation of the New Constitution. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is Death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence e.g. murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released.”
7. Further, Section 123A of the Criminal Procedure Code 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.
8. Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 sets out judicial policy on bail as follows: -
The following procedures should apply to the bail hearing: -
a. That the accused person is likely to fail to attend court proceedings; or
b. That the accused person is likely to commit, or abet the commission of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.
9.Having considered all the above, I am satisfied the application for bond on behalf of the accused person is merited. The same is accordingly allowed and the accused is to be released on a personal bond of Ks. 400,000/- plus one surety of like amount
Read Dated and Signed at ITEN on 3rd April 2025