RULING ON REVIEW OF BAIL
1. The accused person JAMES ONSAE ONDARI is charged that on the night of 16 th June 2024 at around 21:00HRS at Stone City within New-light area in Soweto within Njiru sub-county with Nairobi murdered Judy Mutinda Mutiso.
2. The accused person pleaded not guilty to the charge of murder and through MR. Agwata Advocate sought to be released on bail pending trial but the court declined to do so to allow the prosecution to call their witnesses who included a minor who was allegedly an eye witness and other neighbors to the deceased to avoid possible interference with the witnesses.
3. The accused person under Article 49 (1) (h) of the Constitution of Kenya is entitled to the release on bail pending trial unless there are compelling reasons not to do so. See DANSON Mgunya & Another Vs. Republic 2010 eKLR .
4. The accused person through counsel on the 13 th April 2026 renewed his application for release on bail and the same was not opposed by the prosecution stating that the minor that was lined up to testify has already given evidence thus there is no likelihood that he is likely to be interfered with.
5. The court in setting bail terms must also remain alive to the stage at which the proceedings have reached and take into account the interests of the administration of justice so as to ensure that the release on bail of the accused person does not pose any danger to the matter progressing in the event that the accused were to fail to appear.
6. The primary consideration in granting bail is whether upon release on bail the accused person would return to face trial.
7. The court must however take into consideration other factors such as the strength of evidence so far received in the proceedings as well in deciding whether or not to release the accused person on bail.
8. The court in Rep ublic vs Margaret Nyaguthi Kimeu (2013) eKLR went ahead and denied the accused person bail pending hearing and determination of the case and stated; “ I have considered the application, the nature of the offence and the strength of the evidence on record and the severity of the sentence to be meted out if the applicant is found guilty’’ .
9. This court has heard the evidence so far tendered and even though the accused person is still presumed to be innocent until proven guilty, the court must balance the interests of the administration of justice, the right to a fair hearing to the accused and victims against the right to liberty of the accused person.
10. The prosecution has so far called two prosecution witnesses and the bundle provided to court has only 8 witnesses lined up for trial meaning therefore there are about 6 witnesses to go.
11. In the interests of justice this matter has reached a stage where the prosecution must be ready to avail all the remaining witnesses. This court is not minded to release the accused person on bail on account of the strength of the evidence so far received and considering that the accused just like the court has sat through the trial and is aware of the gravity of the offence and the strength of the evidence so far received in the trial.
12. The court has also noted that in the affidavit that the prosecution had filed in opposition to bond, at paragraph 9 there was mention of the issue of counselling to the victim’s family and nothing has been said so far about that important matter both by the prosecution and the defense. It is a matter the prosecution needs to follow up on.
13. It is a matter that the court cannot ignore since it was one of the matters this court was urged to consider before granting bail.
14. It is my considered view therefore this is not a fit case for the release of the accused person on bail based on the strength of the evidence so far received as well as the need to protect the interests of the administration of justice.
15. The upshot of the above is that the accused shall remain in custody until this matter is heard and determined in the public interest and so as to ensure the interests of the administration of justice are protected.
16. The prosecution is directed to ensure that at the next phase of hearing all the remaining prosecution witnesses are availed to ensure that the matter is expeditiously concluded.
17. It is so ordered.
1. The accused person JAMES ONSAE ONDARI is charged that on the night of 16 th June 2024 at around 21:00HRS at Stone City within New-light area in Soweto within Njiru sub-county with Nairobi murdered Judy Mutinda Mutiso.
2. The accused person pleaded not guilty to the charge of murder and through MR. Agwata Advocate sought to be released on bail pending trial but the court declined to do so to allow the prosecution to call their witnesses who included a minor who was allegedly an eye witness and other neighbors to the deceased to avoid possible interference with the witnesses.
3. The accused person under Article 49 (1) (h) of the Constitution of Kenya is entitled to the release on bail pending trial unless there are compelling reasons not to do so. See DANSON Mgunya & Another Vs. Republic 2010 eKLR .
4. The accused person through counsel on the 13 th April 2026 renewed his application for release on bail and the same was not opposed by the prosecution stating that the minor that was lined up to testify has already given evidence thus there is no likelihood that he is likely to be interfered with.
5. The court in setting bail terms must also remain alive to the stage at which the proceedings have reached and take into account the interests of the administration of justice so as to ensure that the release on bail of the accused person does not pose any danger to the matter progressing in the event that the accused were to fail to appear.
6. The primary consideration in granting bail is whether upon release on bail the accused person would return to face trial.
7. The court must however take into consideration other factors such as the strength of evidence so far received in the proceedings as well in deciding whether or not to release the accused person on bail.
8. The court in Rep ublic vs Margaret Nyaguthi Kimeu (2013) eKLR went ahead and denied the accused person bail pending hearing and determination of the case and stated; “ I have considered the application, the nature of the offence and the strength of the evidence on record and the severity of the sentence to be meted out if the applicant is found guilty’’ .
9. This court has heard the evidence so far tendered and even though the accused person is still presumed to be innocent until proven guilty, the court must balance the interests of the administration of justice, the right to a fair hearing to the accused and victims against the right to liberty of the accused person.
10. The prosecution has so far called two prosecution witnesses and the bundle provided to court has only 8 witnesses lined up for trial meaning therefore there are about 6 witnesses to go.
11. In the interests of justice this matter has reached a stage where the prosecution must be ready to avail all the remaining witnesses. This court is not minded to release the accused person on bail on account of the strength of the evidence so far received and considering that the accused just like the court has sat through the trial and is aware of the gravity of the offence and the strength of the evidence so far received in the trial.
12. The court has also noted that in the affidavit that the prosecution had filed in opposition to bond, at paragraph 9 there was mention of the issue of counselling to the victim’s family and nothing has been said so far about that important matter both by the prosecution and the defense. It is a matter the prosecution needs to follow up on.
13. It is a matter that the court cannot ignore since it was one of the matters this court was urged to consider before granting bail.
14. It is my considered view therefore this is not a fit case for the release of the accused person on bail based on the strength of the evidence so far received as well as the need to protect the interests of the administration of justice.
15. The upshot of the above is that the accused shall remain in custody until this matter is heard and determined in the public interest and so as to ensure the interests of the administration of justice are protected.
16. The prosecution is directed to ensure that at the next phase of hearing all the remaining prosecution witnesses are availed to ensure that the matter is expeditiously concluded.
17. It is so ordered.