The accused person in this matter is charged with the offence of Murder contrary to Section 203 as read with 204 of the Penal Code.
It is alleged that on the 10th August 2024 at Blackwood Lounge Embakasi Sub-county, in Nairobi County, the accused person murdered Nicholas Koech.
The accused person has since taken plea after a report dated 10 th July 2025 was presented in court declaring him fit to stand trial.
The Notice of Motion seeking the release of the accused on bail was supported by the Affidavit of Jared Ochieng Ogumbe the accused in this matter.
The accused person through MR. EKISA argued that he is not a flight risk as deposed by the investigating officer NO.67474 CPL JOSEPHAT MAKAI of DCI Embakasi in his affidavit in opposition to bail dated 29 th November 2024.
According to the defense counsel the accused person has a well- known place of abode and that the state is opposed to his release on Bail because they had difficulties in tracing and arresting the accused person.
The accused is said to be a mechanic and that he would occasionally leave his place of work to go to pick vehicles from customers in different places a fact that may have contributed to the difficulty the police had in tracing him.
The defense counsel submitted that the accused person was arrested within Umoja Area within the jurisdiction of this court thus he had not taken flight as alleged by the prosecution.
The accused person’s counsel further submitted that the sheer difficulty in effecting the arrest of the accused should not be a ground for court to deny the accused person bail unless it is shown that the accused was actively engaged in dodging the police to evade arrest.
The accused is said not to have any passport thus according to the defense, he has no means and reason of leaving the country.
Further, the accused is said to be a family man with 5 (five) children and that he is the sole bread winner of the family thus his continued incarceration is causing untold suffering to his family.
The defense has urged this court to release the accused on bond and to impose terms and conditions that would ensure the accused attends court as and when required. The accused has expressed willingness to abide by any such conditions that the court may impose.
On the issue of the seriousness of the offence that has been raised by the prosecution, the accused person’s counsel submitted that all offences are bailable in Kenya today and as such the court should not place undue weight and on that consideration.
The accused person has so far spent over 9 months in custody and the taking of plea was delayed by the prosecution by failing to present a medical examination report for the accused in circumstances that remain unclear to this court to date.
The defense argued that the delay in the taking of plea was deliberate and that the same amounted to a violation of Article 50 of the Constitution.
The state vehemently opposed the release of the accused on Bail insisting that the right to bail is not absolute and that the court has a discretion over the matter.
The prosecution counsel argued that after the incident leading to the death of the deceased the accused person fled from Nairobi to his home in Homa bay County.
The state however conceded that he was arrested 2 months later in Kayole Nairobi.
MS. DELA counsel for the prosecution urged the court to deny bail even though the accused person had a fixed abode in Nairobi but could not be traced for 2 months before his arrest.
The prosecution counsel further submitted that the accused person had not given details of the place he would be residing in upon release on Bail.
The defense in response urged the court to impose a condition that the accused person provides the details of his abode before release on bail.
The court has duly considered the rival arguments by counsel for both parties.
It is clear to this court that the state is opposed to release of the accused solely on the basis that he is flight risk.
The prosecution agrees that he was arrested within Nairobi after about 2 months and that he has a known place of abode in Nairobi.
The court has the discretion to deny or to grant bail and in exercising that discretion the pre-dominant consideration should be whether an accused person once released on bail would return to court for his trial.
An accused person enjoys the presumption of innocence under Article 50 (2) (a) of the Constitution. The fact that the prosecution had difficulties in arresting the accused cannot by itself be deemed to be a compelling reason for the denial of bail more so where the prosecution does not provide details of attempts made by the investigating officer to try to locate the accused person before arrest.
It is common knowledge that an investigation diary which is a mandatory record for all investigating officers would be able to provide every detail of actions taken by an investigating officer in relation to the matter. It would serve a useful purpose for an investigator who alleges to have made efforts to effect an arrest to demonstrate that to the court by detailing specific dates and places visited by him or any of his colleagues in trying to locate the accused person and then results of each of one of those visits. The failure to place such details on record leaves the court with nothing material to act in determining whether an accused person had gone underground.
Corporal Josephat Makai of DCI Embakasi at paragraphs 10 & 11 of his affidavit states:
“ 10. THAT the police officers could not trace the accused in his known place of aboard in Nairobi county and his rural home in Homabay.
11. THAT when the investigation team tried to locate him he was traced to Kayole and later Umoja where he arrested on 8/10/24 within B-centre in Umoja estate.”
The two paragraphs do not provide details of when the alleged attempts to arrest the accused in Homa bay were made and Nairobi county and in paragraph 11 it is clear when the police tried to locate him on 8 th October 2024 they were able to find him in Nairobi. It follows therefore that there were no serious efforts made by the Investigators that would make this court conclude that if the accused person is released on bail he would not return for his trial.
The court certainly notes that the seriousness of the offence is a matter to consider when granting bail however, the Constitution under Article 49 does not categorize offences that are unbailable therefore leaving it open to the court to consider other factors in determining whether or not to grant bail.
In Watoro Vs Republic ( 1991) KLR 2020 at page 283 Porter , J:
“ I have made it clear over a number of rulings in bail application that I take the view on authority that the paramount consideration in bail application is whether the accused will turn up for his trial….”
This being the primary consideration the finding of this court is that the prosecution has failed to demonstrate that the accused is a flight risk.
It is not enough to simply say that a visit was made to one’s home and he was not found and therefore the court should be inclined to conclude that the person is a flight risk.
The rigors of life today do not permit idle sitting and therefore people are bound to move around in a bid to eke a living and that does not necessarily mean that in venturing out of one’s home one is taking flight.
Consequently, I allow the accused person’s application for release on bail on the following terms and conditions:
The accused shall be released on a bond of Kshs.1 million plus one surety of similar amount
The accused shall provide to the deputy registrar details of his permanent residence including the plot number, location and registered owner of the property
The accused shall obtain a letter from the local chief confirming that he resides in such a place as particularized in (b) above.
The accused shall provide his mobile telephone number that he shall retain in use throughout the trial.
The surety shall also provide his mobile telephone number and a copy of national ID
The accused shall not leave the jurisdiction of Nairobi -county with the leave of this court during the period of the trial
It is so ordered.
It is alleged that on the 10th August 2024 at Blackwood Lounge Embakasi Sub-county, in Nairobi County, the accused person murdered Nicholas Koech.
The accused person has since taken plea after a report dated 10 th July 2025 was presented in court declaring him fit to stand trial.
The Notice of Motion seeking the release of the accused on bail was supported by the Affidavit of Jared Ochieng Ogumbe the accused in this matter.
The accused person through MR. EKISA argued that he is not a flight risk as deposed by the investigating officer NO.67474 CPL JOSEPHAT MAKAI of DCI Embakasi in his affidavit in opposition to bail dated 29 th November 2024.
According to the defense counsel the accused person has a well- known place of abode and that the state is opposed to his release on Bail because they had difficulties in tracing and arresting the accused person.
The accused is said to be a mechanic and that he would occasionally leave his place of work to go to pick vehicles from customers in different places a fact that may have contributed to the difficulty the police had in tracing him.
The defense counsel submitted that the accused person was arrested within Umoja Area within the jurisdiction of this court thus he had not taken flight as alleged by the prosecution.
The accused person’s counsel further submitted that the sheer difficulty in effecting the arrest of the accused should not be a ground for court to deny the accused person bail unless it is shown that the accused was actively engaged in dodging the police to evade arrest.
The accused is said not to have any passport thus according to the defense, he has no means and reason of leaving the country.
Further, the accused is said to be a family man with 5 (five) children and that he is the sole bread winner of the family thus his continued incarceration is causing untold suffering to his family.
The defense has urged this court to release the accused on bond and to impose terms and conditions that would ensure the accused attends court as and when required. The accused has expressed willingness to abide by any such conditions that the court may impose.
On the issue of the seriousness of the offence that has been raised by the prosecution, the accused person’s counsel submitted that all offences are bailable in Kenya today and as such the court should not place undue weight and on that consideration.
The accused person has so far spent over 9 months in custody and the taking of plea was delayed by the prosecution by failing to present a medical examination report for the accused in circumstances that remain unclear to this court to date.
The defense argued that the delay in the taking of plea was deliberate and that the same amounted to a violation of Article 50 of the Constitution.
The state vehemently opposed the release of the accused on Bail insisting that the right to bail is not absolute and that the court has a discretion over the matter.
The prosecution counsel argued that after the incident leading to the death of the deceased the accused person fled from Nairobi to his home in Homa bay County.
The state however conceded that he was arrested 2 months later in Kayole Nairobi.
MS. DELA counsel for the prosecution urged the court to deny bail even though the accused person had a fixed abode in Nairobi but could not be traced for 2 months before his arrest.
The prosecution counsel further submitted that the accused person had not given details of the place he would be residing in upon release on Bail.
The defense in response urged the court to impose a condition that the accused person provides the details of his abode before release on bail.
The court has duly considered the rival arguments by counsel for both parties.
It is clear to this court that the state is opposed to release of the accused solely on the basis that he is flight risk.
The prosecution agrees that he was arrested within Nairobi after about 2 months and that he has a known place of abode in Nairobi.
The court has the discretion to deny or to grant bail and in exercising that discretion the pre-dominant consideration should be whether an accused person once released on bail would return to court for his trial.
An accused person enjoys the presumption of innocence under Article 50 (2) (a) of the Constitution. The fact that the prosecution had difficulties in arresting the accused cannot by itself be deemed to be a compelling reason for the denial of bail more so where the prosecution does not provide details of attempts made by the investigating officer to try to locate the accused person before arrest.
It is common knowledge that an investigation diary which is a mandatory record for all investigating officers would be able to provide every detail of actions taken by an investigating officer in relation to the matter. It would serve a useful purpose for an investigator who alleges to have made efforts to effect an arrest to demonstrate that to the court by detailing specific dates and places visited by him or any of his colleagues in trying to locate the accused person and then results of each of one of those visits. The failure to place such details on record leaves the court with nothing material to act in determining whether an accused person had gone underground.
Corporal Josephat Makai of DCI Embakasi at paragraphs 10 & 11 of his affidavit states:
“ 10. THAT the police officers could not trace the accused in his known place of aboard in Nairobi county and his rural home in Homabay.
11. THAT when the investigation team tried to locate him he was traced to Kayole and later Umoja where he arrested on 8/10/24 within B-centre in Umoja estate.”
The two paragraphs do not provide details of when the alleged attempts to arrest the accused in Homa bay were made and Nairobi county and in paragraph 11 it is clear when the police tried to locate him on 8 th October 2024 they were able to find him in Nairobi. It follows therefore that there were no serious efforts made by the Investigators that would make this court conclude that if the accused person is released on bail he would not return for his trial.
The court certainly notes that the seriousness of the offence is a matter to consider when granting bail however, the Constitution under Article 49 does not categorize offences that are unbailable therefore leaving it open to the court to consider other factors in determining whether or not to grant bail.
In Watoro Vs Republic ( 1991) KLR 2020 at page 283 Porter , J:
“ I have made it clear over a number of rulings in bail application that I take the view on authority that the paramount consideration in bail application is whether the accused will turn up for his trial….”
This being the primary consideration the finding of this court is that the prosecution has failed to demonstrate that the accused is a flight risk.
It is not enough to simply say that a visit was made to one’s home and he was not found and therefore the court should be inclined to conclude that the person is a flight risk.
The rigors of life today do not permit idle sitting and therefore people are bound to move around in a bid to eke a living and that does not necessarily mean that in venturing out of one’s home one is taking flight.
Consequently, I allow the accused person’s application for release on bail on the following terms and conditions:
The accused shall be released on a bond of Kshs.1 million plus one surety of similar amount
The accused shall provide to the deputy registrar details of his permanent residence including the plot number, location and registered owner of the property
The accused shall obtain a letter from the local chief confirming that he resides in such a place as particularized in (b) above.
The accused shall provide his mobile telephone number that he shall retain in use throughout the trial.
The surety shall also provide his mobile telephone number and a copy of national ID
The accused shall not leave the jurisdiction of Nairobi -county with the leave of this court during the period of the trial
It is so ordered.