'1. The Accused Persons have been charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. Plea was taken on 12.6.25 pleaded not guilty to the charges. They are duly represented herein by Mr. Magara advocate .
3. The state filed an affidavit on Pc Newton Miriti The investigating officer herein dated 12.6.25 in support of their application for denial of Bail .PC Miriti deponed that Accused no . 1 is flight risk as he escaped arrest while being aided by Accused no . 2. Also that the lives of accused will be at risk as this is a public interest matter. Further that most of rthe prosecution witnesses are friends to accused and thus fear being intimidated by accused against testifying herein. This court called for pre-bail reports in respect to the accused herein and the same were filed . The report indicates that the incident is still fresh in the mind of the victims and the community. Further that the community is still not safe for then to return back to. The reports recommends that accused be released on bond on condition that they seek alternative places of aboard pending the hearing and determination on the matter. Each accused proceeded to file an affidavit indicating alternative place of aboard in Trans Nzoia County.
4. Mr Magara Advocate acting for accused herein swore an affidavit dated 30.6.25 in response to the affidavit by the investigating officer . He terms the application for denial of bond malicious as accused have refused to co-operate with the investigating officer herein No 111320 PC Collins Miriti who has been demanding Kshs 150,000/= bribe from accused and or their families saying the same would be used to facilitate bond and would be shared between this court and the learned prosecutor . He told this court that no compelling reasons has been advanced by prosecution to deny bond as accused are not a flight risk and no evidence of interference with witnesses has been advanced. Also that the accused have sureties who are ready and willing to stand in a sureties .
5. The investigating officer filed a further affidavit sworn on 24.7.25 reiterating that accused are a flight risk and likely to interfere with witnesses and they their lives will also be at risk at home. Also that allegations of bribery raised by defence counsel in his replying affidavit are false malicious, farfetched ,uncalled for ,scandalous unsubstantiated and intended to cast aspersions on the integrity of the Judicial process . Also that the respondents should furnish the court with evidence of their said allegations.
6. He also said that the fact that the 3rd accused surrendered himself to the police does not negate the fact that he is a flight risk and that the application has not been made in good faith.
DETERMINATION
7. I have considered the application, the replying affidavit and the pre-bail reports.
8. Article 49(1)(h) of the Constitution 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 as rightly stated by the accused and the state herein.
9. Paragraph 3 of the Bail and Bond Policy Guidelines sets out the general principles that shall guide the process of bail and bond decision-making. They are as follows: -
a) The right of accused person to be presumed innocent.
b) Accused Person’s right to liberty.
c) Accused’s obligation to attend trial.
d) Right to reasonable bail and bond terms.
e) Bail determination must balance the rights of the accused persons and the interest of justice.
f) Consideration for the rights of victims.
10. The purpose of bond is to ensure that an accused person comes back to court for trial (Section 4.9 of the Bail and Bond Policy Guidelines)
Also see Republic v Danford Kabage Mwangi (2016) eKLR;
11. The following factors, which are by no means exhaustive, should be considered in an application for bond: -
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) Character and antecedents of the accused person.
d) The failure of the accused person to observe bail or bond terms.
e) Likelihood of interfering with witnesses.
f) The need to protect the victim(s) of the crime.
g) The relationship between the accused person and potential witnesses.
h) Child offenders.
i) The accused person is a flight risk.
j) Whether accused person is gainfully employed.
k) Public order, peace or security.
l) Protection of the accused person.
12. Indeed, Section 123A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya, provides for the considerations that a Court should have in mind when considering an application for bail or bond. They are:
a) The nature and 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 fulfillment of obligations under previous grants of bail; and
d) The strength of the evidence of his having committed the offence.
13. These conditions were restated in the cases of Republic v Daniel Ndegwa Wachira [2015] where Justice Mativo (as he then was) referred to the case of the Supreme Court in Nigeria in Alhaji Mujahid Dukubo-Asari vs Federal Republic of Nigeria SC 20A/2006; the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR pronounced itself as such; and the case of Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR) (3 December 2021) (Ruling) where Justice Mativo (as he then was) referred to the case of the Supreme Court of India in Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 which Court laid out similar conditions to be considered in an application for bail pending the hearing of an appeal.
14. In all these, the common denominator is that it is for the prosecution to establish the existence of these compelling reasons. See Paragraphs 23 and 28 of the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR
15. I agree with the finding in the case of Oscar Edwin Okimaru v Republic [2021] eKLR, where the Court held as follows:
“20. Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release…”
16. The Prosecution raised the following issues in their response:
a) Interference with witnesses and /or safety of witnesses.
b) Safety of accused persons.
17. On interference with witnesses, the investigating officer has deponed that the accused are friends to most of his witnesses and in his further affidavit he mentioned key witness no. 10 as being a cousin and a close friend to accused no. 1 while accused no 2 is a friend to witness no. D7 . He did not give further details and so this court is not able to make a determination on whether the alleged relationship between accused and the said witnesses can affect the case. In any event the said friends must have recorded statements with the police and are compellable witnesses . In the case of Republic v Dwight Sagaray & 4 Others [2013] eKLR, where it was held “As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju vs Republic [1973] E.A. 284, where the court in dismissing the prosecutor’s fear of interference with witnesses, stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking the court to speculate.”
18. Applying the same rationale in the case (supra) to the instant case, it behooved the Prosecution to establish that the Applicant was likely to interfere with witnesses or provide proof that there was indeed interference with witnesses . No witness swore and affidavit claiming that accused have approached them to recant their testimonies or not to testify all together This has not been done. The allegation has not been supported by any facts but is based on mere surmise and conjecture . No interference or likely interference with witnesses has been established .
19. On whether accused are a flight risk, the investigating officer deponed that accused are a flight risk as accused no.1 who was taking to accused no. 2 ran away when witness D6 went to arrest him . The circumstances of their arrest have not been explained. It has emerged that accused no .3 surrendered himself to the chief . The probation officer found that accused have strong community ties and are thus not a flight risk . It has not been established that accused are a flight risk.
20. The pre-bail report indicates that the security of accused may not be guaranteed if they are released to go back to the community now . This court has a duty to protect accused in as much as it has a duty to protect victims.. In the case of Rotich v Republic (Criminal Case E007 of 2022) [2022] KEHC 616 (14 June 2022) (Ruling), the Court held as follows: -
“12. …. Of course the ire is expected subside (sic) after some time but for now the risk to the Applicant’s life is a compelling reason for denying him bond.”
21. Accused have not denied that their lives are in danger as found by the probation officer and the investigating officer. The probation officer proposed that accused can be released on bond on condition they find alternative places of abode. Accused have deponed that they have new placed of aboard in Transnzoia . I find that the lives of accused will be endangered if released on bond to go back home as the situation at home is still volatile . The probation officer proposed that accused can be released on bond on condition that they find alternative places of abode . Accused have deponed that they have found new temporary places of aboard in Transnzoia where they can relocate to till the case is heard and determined . The proposal by the probation officer is transformative and will ensure that the right of accused to bond is upheld and that the security of accused will be guaranteed while at the same time it will serve to decongest the prisons.
22. On the allegations of demands of bribe by the investigating officer , on 23.7.25 when defence counsel raised the issue before this court this court directed that a report on the same be made to EACC . I directed that a report on the same be filed by 22.9.25 but the same is yet to be filed. Counsel says that the relatives of the accused who made the allegations have not reported the matter. I direct that the issue be dealt with on the hearing date.
Conclusion
23. I find that prosecution have not established compelling reasons to deny accused bond. I agree with the proposal by probation officer and I admit each accused to bond of Kshs. 500,000/= WSLS .
24. Hearing on 8.10.25 .
Delivered virtually Via teams Platform on this day of 2025 in the presence of:
The 3 accused
Mr. Koima for the State.
Mr Magara for the 3 accused
CA: Kipchirchir
'
2. Plea was taken on 12.6.25 pleaded not guilty to the charges. They are duly represented herein by Mr. Magara advocate .
3. The state filed an affidavit on Pc Newton Miriti The investigating officer herein dated 12.6.25 in support of their application for denial of Bail .PC Miriti deponed that Accused no . 1 is flight risk as he escaped arrest while being aided by Accused no . 2. Also that the lives of accused will be at risk as this is a public interest matter. Further that most of rthe prosecution witnesses are friends to accused and thus fear being intimidated by accused against testifying herein. This court called for pre-bail reports in respect to the accused herein and the same were filed . The report indicates that the incident is still fresh in the mind of the victims and the community. Further that the community is still not safe for then to return back to. The reports recommends that accused be released on bond on condition that they seek alternative places of aboard pending the hearing and determination on the matter. Each accused proceeded to file an affidavit indicating alternative place of aboard in Trans Nzoia County.
4. Mr Magara Advocate acting for accused herein swore an affidavit dated 30.6.25 in response to the affidavit by the investigating officer . He terms the application for denial of bond malicious as accused have refused to co-operate with the investigating officer herein No 111320 PC Collins Miriti who has been demanding Kshs 150,000/= bribe from accused and or their families saying the same would be used to facilitate bond and would be shared between this court and the learned prosecutor . He told this court that no compelling reasons has been advanced by prosecution to deny bond as accused are not a flight risk and no evidence of interference with witnesses has been advanced. Also that the accused have sureties who are ready and willing to stand in a sureties .
5. The investigating officer filed a further affidavit sworn on 24.7.25 reiterating that accused are a flight risk and likely to interfere with witnesses and they their lives will also be at risk at home. Also that allegations of bribery raised by defence counsel in his replying affidavit are false malicious, farfetched ,uncalled for ,scandalous unsubstantiated and intended to cast aspersions on the integrity of the Judicial process . Also that the respondents should furnish the court with evidence of their said allegations.
6. He also said that the fact that the 3rd accused surrendered himself to the police does not negate the fact that he is a flight risk and that the application has not been made in good faith.
DETERMINATION
7. I have considered the application, the replying affidavit and the pre-bail reports.
8. Article 49(1)(h) of the Constitution 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 as rightly stated by the accused and the state herein.
9. Paragraph 3 of the Bail and Bond Policy Guidelines sets out the general principles that shall guide the process of bail and bond decision-making. They are as follows: -
a) The right of accused person to be presumed innocent.
b) Accused Person’s right to liberty.
c) Accused’s obligation to attend trial.
d) Right to reasonable bail and bond terms.
e) Bail determination must balance the rights of the accused persons and the interest of justice.
f) Consideration for the rights of victims.
10. The purpose of bond is to ensure that an accused person comes back to court for trial (Section 4.9 of the Bail and Bond Policy Guidelines)
Also see Republic v Danford Kabage Mwangi (2016) eKLR;
11. The following factors, which are by no means exhaustive, should be considered in an application for bond: -
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) Character and antecedents of the accused person.
d) The failure of the accused person to observe bail or bond terms.
e) Likelihood of interfering with witnesses.
f) The need to protect the victim(s) of the crime.
g) The relationship between the accused person and potential witnesses.
h) Child offenders.
i) The accused person is a flight risk.
j) Whether accused person is gainfully employed.
k) Public order, peace or security.
l) Protection of the accused person.
12. Indeed, Section 123A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya, provides for the considerations that a Court should have in mind when considering an application for bail or bond. They are:
a) The nature and 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 fulfillment of obligations under previous grants of bail; and
d) The strength of the evidence of his having committed the offence.
13. These conditions were restated in the cases of Republic v Daniel Ndegwa Wachira [2015] where Justice Mativo (as he then was) referred to the case of the Supreme Court in Nigeria in Alhaji Mujahid Dukubo-Asari vs Federal Republic of Nigeria SC 20A/2006; the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR pronounced itself as such; and the case of Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR) (3 December 2021) (Ruling) where Justice Mativo (as he then was) referred to the case of the Supreme Court of India in Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 which Court laid out similar conditions to be considered in an application for bail pending the hearing of an appeal.
14. In all these, the common denominator is that it is for the prosecution to establish the existence of these compelling reasons. See Paragraphs 23 and 28 of the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR
15. I agree with the finding in the case of Oscar Edwin Okimaru v Republic [2021] eKLR, where the Court held as follows:
“20. Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release…”
16. The Prosecution raised the following issues in their response:
a) Interference with witnesses and /or safety of witnesses.
b) Safety of accused persons.
17. On interference with witnesses, the investigating officer has deponed that the accused are friends to most of his witnesses and in his further affidavit he mentioned key witness no. 10 as being a cousin and a close friend to accused no. 1 while accused no 2 is a friend to witness no. D7 . He did not give further details and so this court is not able to make a determination on whether the alleged relationship between accused and the said witnesses can affect the case. In any event the said friends must have recorded statements with the police and are compellable witnesses . In the case of Republic v Dwight Sagaray & 4 Others [2013] eKLR, where it was held “As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju vs Republic [1973] E.A. 284, where the court in dismissing the prosecutor’s fear of interference with witnesses, stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking the court to speculate.”
18. Applying the same rationale in the case (supra) to the instant case, it behooved the Prosecution to establish that the Applicant was likely to interfere with witnesses or provide proof that there was indeed interference with witnesses . No witness swore and affidavit claiming that accused have approached them to recant their testimonies or not to testify all together This has not been done. The allegation has not been supported by any facts but is based on mere surmise and conjecture . No interference or likely interference with witnesses has been established .
19. On whether accused are a flight risk, the investigating officer deponed that accused are a flight risk as accused no.1 who was taking to accused no. 2 ran away when witness D6 went to arrest him . The circumstances of their arrest have not been explained. It has emerged that accused no .3 surrendered himself to the chief . The probation officer found that accused have strong community ties and are thus not a flight risk . It has not been established that accused are a flight risk.
20. The pre-bail report indicates that the security of accused may not be guaranteed if they are released to go back to the community now . This court has a duty to protect accused in as much as it has a duty to protect victims.. In the case of Rotich v Republic (Criminal Case E007 of 2022) [2022] KEHC 616 (14 June 2022) (Ruling), the Court held as follows: -
“12. …. Of course the ire is expected subside (sic) after some time but for now the risk to the Applicant’s life is a compelling reason for denying him bond.”
21. Accused have not denied that their lives are in danger as found by the probation officer and the investigating officer. The probation officer proposed that accused can be released on bond on condition they find alternative places of abode. Accused have deponed that they have new placed of aboard in Transnzoia . I find that the lives of accused will be endangered if released on bond to go back home as the situation at home is still volatile . The probation officer proposed that accused can be released on bond on condition that they find alternative places of abode . Accused have deponed that they have found new temporary places of aboard in Transnzoia where they can relocate to till the case is heard and determined . The proposal by the probation officer is transformative and will ensure that the right of accused to bond is upheld and that the security of accused will be guaranteed while at the same time it will serve to decongest the prisons.
22. On the allegations of demands of bribe by the investigating officer , on 23.7.25 when defence counsel raised the issue before this court this court directed that a report on the same be made to EACC . I directed that a report on the same be filed by 22.9.25 but the same is yet to be filed. Counsel says that the relatives of the accused who made the allegations have not reported the matter. I direct that the issue be dealt with on the hearing date.
Conclusion
23. I find that prosecution have not established compelling reasons to deny accused bond. I agree with the proposal by probation officer and I admit each accused to bond of Kshs. 500,000/= WSLS .
24. Hearing on 8.10.25 .
Delivered virtually Via teams Platform on this day of 2025 in the presence of:
The 3 accused
Mr. Koima for the State.
Mr Magara for the 3 accused
CA: Kipchirchir
'