1. The accused herein Jones Okoth Sao alias Pasaka is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya. He denied the charge.
2. The prosecution has made an application under Article 49(1)h of the Constitution seeking that the accused be denied bond on the basis that there are compelling reasons warranting such denial.
3. In her affidavit in opposition to bond sworn on 29th January, 2026, Ms. Muema, the learned Prosecution Counsel in conduct of the matter deposes that the accused was arrested on 27th December 2025 for the offence of murder contrary to Section 203 of as read with Section 204 of the Penal Code.
4. She further deposes that there exist compelling reasons to warrant the denial of bail to the accused, stating that the accused is facing two serious murder allegations, one of which is jointly brought with one Jared Ouma Omollo and other persons not presently before the court, while the second alleged murder offence is still under investigation. According to the deponent, both offences are grave in nature and upon conviction attract a mandatory sentence of life imprisonment.
5. The deponent further avers that the accused, together with the said Jared Ouma Omollo murdered one Alphonce Otieno Omollo on 7th March, 2024 and that a charge sheet relating to the said offence has been annexed to the affidavit.
6. She further states that the said criminal case was determined in the absence of the accused herein, and that the co-accused, Jared Ouma Omollo, was convicted of the offence of manslaughter and sentenced to eight years’ imprisonment after entering into a plea bargain in HCCR No. E013 of 2025 Republic v Jared Ouma Omollo.
7. It is further deposed that the accused absconded and remained at large during the entire period of the court proceedings in the said case until his arrest on 27th December, 2025, which according to the deponent demonstrates that he poses a flight risk if released on bail.
8. The deponent further avers that the accused is also a suspect in another murder case reported at Kogony Police Station vide OB No. 21/8/2/24 and that investigations into the said matter are still ongoing.
9. Finally, the deponent states that the accused does not have a fixed place of abode as he allegedly resides with his parents but is frequently absent from home, and further asserts that the majority of the witnesses reside within the same neighbourhood as the accused, thereby raising the likelihood that he may interfere with them if released on bond.
10. The States application is resisted by the accused who swore a replying affidavit on 6th February, 2026 to that end.
11. In his affidavit in support of his application for bond, the accused deposes that he was arrested on 26th December 2025 and has remained in custody for more than forty days since his arrest. He states that he has been advised by his counsel on record that all offences are bailable and that it is immaterial whether one is charged with a capital offence or a misdemeanour. He further avers that under Article 50(2)(a) of the Constitution every accused person is presumed innocent until proven guilty, and contends that his continued detention amounts to treating him as though he has already been convicted despite the State not having proven the charge against him.
12. The accused further deposes that if his application for release on bail or bond is denied, the continued detention would effectively amount to punishment for an offence that has not yet been proven before the court. He avers that he has been advised by his counsel that a criminal charge is merely an accusation whose merits have not yet been tested before the court.
13. He further deposes that Article 49(1)(h) of the Constitution grants an accused person the right to be released on bail or bond on reasonable conditions pending trial unless there exist compelling reasons to deny such release. According to the accused, he has been advised by counsel that the term “compelling reasons” denotes reasons that are overwhelming and incapable of being resisted, and therefore places a high burden on the State in opposing bail.
14. The accused avers that the affidavit sworn by the investigating officer does not disclose any compelling reasons to warrant the denial of bail. He contends that the claim that he is facing two serious murder charges is incorrect and that he is only accused in the present case relating to the alleged murder of Alphonce Otieno Omollo said to have occurred on 7th March, 2024.
15. He further deposes that although the prosecution refers to proceedings against Jared Ouma Omollo, the said matter was not determined on its merits as the accused therein entered into a plea bargain and was convicted of a lesser offence. The accused contends that the conviction of the said co-accused has no bearing on his own innocence or guilt, and that under Article 50(2)(a) of the Constitution the court cannot infer guilt by association.
16. The accused further avers that he has never been summoned to any police station or other legal authority in relation to the offence and therefore could not have absconded as alleged. He states that no evidence has been produced to demonstrate that any such summons was issued to him and maintains that he had been living openly within the community, including interacting with members of the deceased’s family, from whose home he was eventually arrested.
17. The accused also denies being a suspect in any other murder case allegedly reported at Kogony Police Station and points out that the relevant occurrence book entry was not annexed to the prosecution’s affidavit, nor was the identity of the alleged victim disclosed. He contends that despite being granted time by the court to produce such evidence, the prosecution failed to do so.
18. The accused further deposes that he has a fixed place of abode known to local administrative authorities, including the area Chief and Assistant Chief, as well as relatives and acquaintances who are willing to stand surety for him should the court grant him bail.
19. He also avers that he has never previously been charged with any criminal offence and describes himself as a law-abiding citizen. He therefore disputes the allegation that he is likely to interfere with witnesses who are known to him.
20. The accused further points out that the alleged offence occurred on 7th March, 2024 whereas he was arrested on 26th December, 2025, a period of approximately twenty-one months later. He contends that if he had any intention of interfering with witnesses, he would have done so during that period when he remained at liberty.
21. He nevertheless states that although accused persons released on bail ordinarily continue to live within their communities, the imposition of an order barring him from contacting witnesses would be unduly harsh in the circumstances.
22. Finally, the accused deposes that he is the sole breadwinner of his family, including his elderly parents who depend on him for their basic needs such as food, clothing, subsistence and medical care. He therefore humbly requests the court to uphold his constitutional right to bail and release him on reasonable bond terms pending the hearing and determination of the case.
23. The parties herein urged their respective positions by way of oral submissions whereby they essentially restated and reiterated the contents of their respective affidavits.
24. Having carefully considered the application by the prosecution, the affidavit evidence placed before the court by both parties and the applicable constitutional and legal framework, the court is of the view that the principal issue arising for determination is whether the prosecution has demonstrated the existence of compelling reasons to warrant the denial of bail to the accused person within the meaning of Article 49(1)(h) of the Constitution.
25. Article 49(1)(h) of the Constitution guarantees an arrested person the right to be released on bond or bail on reasonable conditions pending trial unless there are compelling reasons not to be released. This right is closely tied to the presumption of innocence under Article 50(2)(a) of the Constitution. The burden rests upon the prosecution to demonstrate, on a balance of probabilities, the existence of such compelling reasons.
26. The court has carefully considered the grounds advanced by the prosecution, namely: the seriousness of the offence, the alleged flight risk, the possibility of interference with witnesses, the alleged involvement of the accused in another murder investigation and the assertion that the accused lacks a fixed place of abode.
27. On the seriousness of the offence, there is no doubt that the charge of murder is grave and attracts a severe penalty upon conviction. However, it is now well settled that the seriousness of the charge alone does not constitute a compelling reason to deny an accused person bail. To hold otherwise would be to negate the constitutional provision that all offences are bailable.
28. A central plank of the prosecution’s case is that the accused person absconded during earlier proceedings in respect of the same incident, particularly in Kisumu High Court Criminal Case No. HCCR No. E013 of 2025. In this regard, the court has, on its own motion, called for and perused the record of the said file.
29. It is evident from the said record that there was only one accused person in that case, namely Jared Ouma Omollo, who was charged and subsequently convicted upon a plea bargain.
30. The record does not show that the accused herein, Jones Okoth Sao alias Pasaka, was ever charged in that matter or that he was required to attend court in those proceedings. There is equally no material placed before this court to demonstrate that the accused was aware of the existence of those proceedings or that he had been summoned at any point and failed to attend.
31. In the absence of such evidence, the allegation that the accused absconded court proceedings is not borne out by the record. Consequently, the court is unable to find that the accused poses a flight risk on the basis advanced by the prosecution.
32. The court further notes that the accused was arrested approximately twenty-one months after the alleged commission of the offence. There is no evidence that during this period he went into hiding or attempted to evade arrest. This further weakens the prosecution’s assertion that he is likely to abscond.
33. With regard to the allegation that the accused is a suspect in another murder case under investigation, the prosecution did not annex any documentary evidence, including the alleged occurrence book extract, to substantiate this claim. In the absence of such evidence, the court finds this allegation to be unsubstantiated and incapable of amounting to a compelling reason.
34. On the likelihood of interference with witnesses, the prosecution has merely stated that the witnesses reside within the same locality as the accused. No specific instances of interference or attempts thereof have been cited. The court is of the view that such a general assertion, without more, does not meet the threshold of a compelling reason. Any apprehension in this regard can adequately be addressed by the imposition of appropriate bond terms.
35. On the question of a fixed place of abode, the accused has deposed that he resides within a known locality and that his residence is known to local administrative authorities. This assertion has not been controverted by the prosecution through credible evidence.
36. Having considered all the material placed before it, the court finds that the prosecution has failed to demonstrate, on a balance of probabilities, the existence of compelling reasons to warrant the denial of bail to the accused person.
37. In the premises, the court holds that the accused person is entitled to be released on bail or bond pending trial, subject to reasonable conditions to be set by the court. I will then proceed to grant him a bond of Ksh.800,000/- with one surety of similar amount.
38. The hearing will proceed on 26th and 27th October, 2026.
39. It is so ordered.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
ACCUSED: Present.
RESPONDENT: Ms. Muema.
DEFENCE COUNSEL: Mr. Johnson.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The prosecution has made an application under Article 49(1)h of the Constitution seeking that the accused be denied bond on the basis that there are compelling reasons warranting such denial.
3. In her affidavit in opposition to bond sworn on 29th January, 2026, Ms. Muema, the learned Prosecution Counsel in conduct of the matter deposes that the accused was arrested on 27th December 2025 for the offence of murder contrary to Section 203 of as read with Section 204 of the Penal Code.
4. She further deposes that there exist compelling reasons to warrant the denial of bail to the accused, stating that the accused is facing two serious murder allegations, one of which is jointly brought with one Jared Ouma Omollo and other persons not presently before the court, while the second alleged murder offence is still under investigation. According to the deponent, both offences are grave in nature and upon conviction attract a mandatory sentence of life imprisonment.
5. The deponent further avers that the accused, together with the said Jared Ouma Omollo murdered one Alphonce Otieno Omollo on 7th March, 2024 and that a charge sheet relating to the said offence has been annexed to the affidavit.
6. She further states that the said criminal case was determined in the absence of the accused herein, and that the co-accused, Jared Ouma Omollo, was convicted of the offence of manslaughter and sentenced to eight years’ imprisonment after entering into a plea bargain in HCCR No. E013 of 2025 Republic v Jared Ouma Omollo.
7. It is further deposed that the accused absconded and remained at large during the entire period of the court proceedings in the said case until his arrest on 27th December, 2025, which according to the deponent demonstrates that he poses a flight risk if released on bail.
8. The deponent further avers that the accused is also a suspect in another murder case reported at Kogony Police Station vide OB No. 21/8/2/24 and that investigations into the said matter are still ongoing.
9. Finally, the deponent states that the accused does not have a fixed place of abode as he allegedly resides with his parents but is frequently absent from home, and further asserts that the majority of the witnesses reside within the same neighbourhood as the accused, thereby raising the likelihood that he may interfere with them if released on bond.
10. The States application is resisted by the accused who swore a replying affidavit on 6th February, 2026 to that end.
11. In his affidavit in support of his application for bond, the accused deposes that he was arrested on 26th December 2025 and has remained in custody for more than forty days since his arrest. He states that he has been advised by his counsel on record that all offences are bailable and that it is immaterial whether one is charged with a capital offence or a misdemeanour. He further avers that under Article 50(2)(a) of the Constitution every accused person is presumed innocent until proven guilty, and contends that his continued detention amounts to treating him as though he has already been convicted despite the State not having proven the charge against him.
12. The accused further deposes that if his application for release on bail or bond is denied, the continued detention would effectively amount to punishment for an offence that has not yet been proven before the court. He avers that he has been advised by his counsel that a criminal charge is merely an accusation whose merits have not yet been tested before the court.
13. He further deposes that Article 49(1)(h) of the Constitution grants an accused person the right to be released on bail or bond on reasonable conditions pending trial unless there exist compelling reasons to deny such release. According to the accused, he has been advised by counsel that the term “compelling reasons” denotes reasons that are overwhelming and incapable of being resisted, and therefore places a high burden on the State in opposing bail.
14. The accused avers that the affidavit sworn by the investigating officer does not disclose any compelling reasons to warrant the denial of bail. He contends that the claim that he is facing two serious murder charges is incorrect and that he is only accused in the present case relating to the alleged murder of Alphonce Otieno Omollo said to have occurred on 7th March, 2024.
15. He further deposes that although the prosecution refers to proceedings against Jared Ouma Omollo, the said matter was not determined on its merits as the accused therein entered into a plea bargain and was convicted of a lesser offence. The accused contends that the conviction of the said co-accused has no bearing on his own innocence or guilt, and that under Article 50(2)(a) of the Constitution the court cannot infer guilt by association.
16. The accused further avers that he has never been summoned to any police station or other legal authority in relation to the offence and therefore could not have absconded as alleged. He states that no evidence has been produced to demonstrate that any such summons was issued to him and maintains that he had been living openly within the community, including interacting with members of the deceased’s family, from whose home he was eventually arrested.
17. The accused also denies being a suspect in any other murder case allegedly reported at Kogony Police Station and points out that the relevant occurrence book entry was not annexed to the prosecution’s affidavit, nor was the identity of the alleged victim disclosed. He contends that despite being granted time by the court to produce such evidence, the prosecution failed to do so.
18. The accused further deposes that he has a fixed place of abode known to local administrative authorities, including the area Chief and Assistant Chief, as well as relatives and acquaintances who are willing to stand surety for him should the court grant him bail.
19. He also avers that he has never previously been charged with any criminal offence and describes himself as a law-abiding citizen. He therefore disputes the allegation that he is likely to interfere with witnesses who are known to him.
20. The accused further points out that the alleged offence occurred on 7th March, 2024 whereas he was arrested on 26th December, 2025, a period of approximately twenty-one months later. He contends that if he had any intention of interfering with witnesses, he would have done so during that period when he remained at liberty.
21. He nevertheless states that although accused persons released on bail ordinarily continue to live within their communities, the imposition of an order barring him from contacting witnesses would be unduly harsh in the circumstances.
22. Finally, the accused deposes that he is the sole breadwinner of his family, including his elderly parents who depend on him for their basic needs such as food, clothing, subsistence and medical care. He therefore humbly requests the court to uphold his constitutional right to bail and release him on reasonable bond terms pending the hearing and determination of the case.
23. The parties herein urged their respective positions by way of oral submissions whereby they essentially restated and reiterated the contents of their respective affidavits.
24. Having carefully considered the application by the prosecution, the affidavit evidence placed before the court by both parties and the applicable constitutional and legal framework, the court is of the view that the principal issue arising for determination is whether the prosecution has demonstrated the existence of compelling reasons to warrant the denial of bail to the accused person within the meaning of Article 49(1)(h) of the Constitution.
25. Article 49(1)(h) of the Constitution guarantees an arrested person the right to be released on bond or bail on reasonable conditions pending trial unless there are compelling reasons not to be released. This right is closely tied to the presumption of innocence under Article 50(2)(a) of the Constitution. The burden rests upon the prosecution to demonstrate, on a balance of probabilities, the existence of such compelling reasons.
26. The court has carefully considered the grounds advanced by the prosecution, namely: the seriousness of the offence, the alleged flight risk, the possibility of interference with witnesses, the alleged involvement of the accused in another murder investigation and the assertion that the accused lacks a fixed place of abode.
27. On the seriousness of the offence, there is no doubt that the charge of murder is grave and attracts a severe penalty upon conviction. However, it is now well settled that the seriousness of the charge alone does not constitute a compelling reason to deny an accused person bail. To hold otherwise would be to negate the constitutional provision that all offences are bailable.
28. A central plank of the prosecution’s case is that the accused person absconded during earlier proceedings in respect of the same incident, particularly in Kisumu High Court Criminal Case No. HCCR No. E013 of 2025. In this regard, the court has, on its own motion, called for and perused the record of the said file.
29. It is evident from the said record that there was only one accused person in that case, namely Jared Ouma Omollo, who was charged and subsequently convicted upon a plea bargain.
30. The record does not show that the accused herein, Jones Okoth Sao alias Pasaka, was ever charged in that matter or that he was required to attend court in those proceedings. There is equally no material placed before this court to demonstrate that the accused was aware of the existence of those proceedings or that he had been summoned at any point and failed to attend.
31. In the absence of such evidence, the allegation that the accused absconded court proceedings is not borne out by the record. Consequently, the court is unable to find that the accused poses a flight risk on the basis advanced by the prosecution.
32. The court further notes that the accused was arrested approximately twenty-one months after the alleged commission of the offence. There is no evidence that during this period he went into hiding or attempted to evade arrest. This further weakens the prosecution’s assertion that he is likely to abscond.
33. With regard to the allegation that the accused is a suspect in another murder case under investigation, the prosecution did not annex any documentary evidence, including the alleged occurrence book extract, to substantiate this claim. In the absence of such evidence, the court finds this allegation to be unsubstantiated and incapable of amounting to a compelling reason.
34. On the likelihood of interference with witnesses, the prosecution has merely stated that the witnesses reside within the same locality as the accused. No specific instances of interference or attempts thereof have been cited. The court is of the view that such a general assertion, without more, does not meet the threshold of a compelling reason. Any apprehension in this regard can adequately be addressed by the imposition of appropriate bond terms.
35. On the question of a fixed place of abode, the accused has deposed that he resides within a known locality and that his residence is known to local administrative authorities. This assertion has not been controverted by the prosecution through credible evidence.
36. Having considered all the material placed before it, the court finds that the prosecution has failed to demonstrate, on a balance of probabilities, the existence of compelling reasons to warrant the denial of bail to the accused person.
37. In the premises, the court holds that the accused person is entitled to be released on bail or bond pending trial, subject to reasonable conditions to be set by the court. I will then proceed to grant him a bond of Ksh.800,000/- with one surety of similar amount.
38. The hearing will proceed on 26th and 27th October, 2026.
39. It is so ordered.
DELIVERED (virtually) DATED and SIGNED this 17th day of March, 2026.
JOE M. OMIDO
JUDGE
ACCUSED: Present.
RESPONDENT: Ms. Muema.
DEFENCE COUNSEL: Mr. Johnson.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.