' .
This ruling concerns the Accused’s oral application for bail pending trial. The application was presented by learned counsel, Mr. Khamisi on behalf of the accused.
The State, through Mr. Geofrey Ntabo , opposed the application and the court requested for a Bail Information Report. The report, prepared by Mr. Stephen Muthoka , is dated 22nd October 2025 . The following grounds were highlighted as reasons for opposing the release of the accused on bond: That after committing the offence for which he has been charged, the accused fled to Uganda in an attempt to evade arrest and justice.
That the murder of the deceased had generated considerable anger and hostility within the community.
That the accused allegedly has no fixed place of abode.
The Bail Information Report
The pre-bail assessment report was compiled pursuant to a court order issued on 8th October 2025 to assist the court in determining whether the accused should be released on bond pending trial. The accused had initially been remanded pending mental assessment and the preparation of a bail assessment report, in view of allegations that he was a flight risk.
To prepare the report, the probation officer conducted extensive interviews and verifications:
The Accused was interviewed at Shimo La Tewa Maximum Prison and gave information on his personal circumstances and his position regarding bond terms and flight-risk allegations.
His wife, Andeline Baraza , was interviewed and reported that she temporarily sells fruits at Kongowea Market and also works as a dobi (laundry worker) to support the family.
The firstborn daughter was also interviewed at the mother’s business location.
Other relatives interviewed included Joseph Munyiri (brother), Moses Ngira (brother-in-law), Leonida Munyiri (mother), and three sisters.
The probation officer also interviewed local administrators from Junda area and from the accused’s rural home in Budalangi , through virtual means. The area chief, assistant chief, and village elder all confirmed that the accused owns a small parcel of land on which his residential house is built, located only a few meters from their homes.
The investigating officer was interviewed virtually, and his views—including those contained in his sworn affidavit opposing bail—were considered.
The victim’s family was interviewed and raised no objection to the accused being granted bond, acknowledging that bond is a constitutional right. However, they expressed concern that the accused had allegedly been on the run since 2024, which raises the likelihood of absconding.
It was further noted that although the accused and his siblings have permanent residences in Kisauni Sub-County, these properties lack title documents and cannot therefore be used as bond security.
Analysis
The foundation of bail and bond in Kenya is found in the Constitution and the Criminal Procedure Code, Cap 75 (CPC).
Article 49(1)(h) of the Constitution provides:
“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.”
Section 123A of the CPC sets out the factors courts must consider in bail applications, including the seriousness of the offence, character and community ties of the accused, prior conduct regarding bail, and the strength of the evidence.
The rationale for bail is anchored in Article 50(2)(a) of the Constitution, which states that an accused person is presumed innocent until the contrary is proved.
The primary consideration in bail applications is whether the accused will attend trial. Compelling reasons—if proved by the State—can justify denial of bail. In Republic v Danson Mgunya & Another [2010] eKLR, Ibrahim J. (as he then was) described the right to bail as an “inalienable right,” which may only be restricted upon the demonstration of compelling reasons.
The prosecution bears the burden of demonstrating such compelling reasons.
Determination of the Grounds Raised
On the question of interference with witnesses, the State tendered no evidence to support this allegation. The mere fact that certain witnesses live in the same locality does not, without more, establish a real likelihood of interference. Accordingly, this ground fails. However, the issue of threats to the accused’s safety—arising from community hostility—remains a relevant consideration.
After considering all the materials before me, the Constitution, the law, and applicable jurisprudence, I find, in terms of Article 49(1)(h) of the Constitution and Section 123A(2)(b) of the CPC, that there exists a compelling reason to decline bail at this stage. The compelling reason is the real possibility that the accused may abscond , given that he is alleged to have fled to Uganda to evade arrest.
Consequently, the application for bond must fail on this sole ground, given the unique circumstances of this case.
Orders
Accordingly, the Court issues the following orders:
a. The application seeking the release of the accused on bond pending trial is hereby declined .
b. The hearing of the case shall be expedited , and the accused may revisit the application at a later appropriate stage.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 27TH DAY OF NOVEMBER 2025
WENDY KAGENDO
JUDGE
Appearances:
Mr. Khamisi , Learned Counsel for the Accused
Mr. Sirima , Learned Senior Assistant Director of Public Prosecutions
Ms. Bebora , Court Assistant
'
This ruling concerns the Accused’s oral application for bail pending trial. The application was presented by learned counsel, Mr. Khamisi on behalf of the accused.
The State, through Mr. Geofrey Ntabo , opposed the application and the court requested for a Bail Information Report. The report, prepared by Mr. Stephen Muthoka , is dated 22nd October 2025 . The following grounds were highlighted as reasons for opposing the release of the accused on bond: That after committing the offence for which he has been charged, the accused fled to Uganda in an attempt to evade arrest and justice.
That the murder of the deceased had generated considerable anger and hostility within the community.
That the accused allegedly has no fixed place of abode.
The Bail Information Report
The pre-bail assessment report was compiled pursuant to a court order issued on 8th October 2025 to assist the court in determining whether the accused should be released on bond pending trial. The accused had initially been remanded pending mental assessment and the preparation of a bail assessment report, in view of allegations that he was a flight risk.
To prepare the report, the probation officer conducted extensive interviews and verifications:
The Accused was interviewed at Shimo La Tewa Maximum Prison and gave information on his personal circumstances and his position regarding bond terms and flight-risk allegations.
His wife, Andeline Baraza , was interviewed and reported that she temporarily sells fruits at Kongowea Market and also works as a dobi (laundry worker) to support the family.
The firstborn daughter was also interviewed at the mother’s business location.
Other relatives interviewed included Joseph Munyiri (brother), Moses Ngira (brother-in-law), Leonida Munyiri (mother), and three sisters.
The probation officer also interviewed local administrators from Junda area and from the accused’s rural home in Budalangi , through virtual means. The area chief, assistant chief, and village elder all confirmed that the accused owns a small parcel of land on which his residential house is built, located only a few meters from their homes.
The investigating officer was interviewed virtually, and his views—including those contained in his sworn affidavit opposing bail—were considered.
The victim’s family was interviewed and raised no objection to the accused being granted bond, acknowledging that bond is a constitutional right. However, they expressed concern that the accused had allegedly been on the run since 2024, which raises the likelihood of absconding.
It was further noted that although the accused and his siblings have permanent residences in Kisauni Sub-County, these properties lack title documents and cannot therefore be used as bond security.
Analysis
The foundation of bail and bond in Kenya is found in the Constitution and the Criminal Procedure Code, Cap 75 (CPC).
Article 49(1)(h) of the Constitution provides:
“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.”
Section 123A of the CPC sets out the factors courts must consider in bail applications, including the seriousness of the offence, character and community ties of the accused, prior conduct regarding bail, and the strength of the evidence.
The rationale for bail is anchored in Article 50(2)(a) of the Constitution, which states that an accused person is presumed innocent until the contrary is proved.
The primary consideration in bail applications is whether the accused will attend trial. Compelling reasons—if proved by the State—can justify denial of bail. In Republic v Danson Mgunya & Another [2010] eKLR, Ibrahim J. (as he then was) described the right to bail as an “inalienable right,” which may only be restricted upon the demonstration of compelling reasons.
The prosecution bears the burden of demonstrating such compelling reasons.
Determination of the Grounds Raised
On the question of interference with witnesses, the State tendered no evidence to support this allegation. The mere fact that certain witnesses live in the same locality does not, without more, establish a real likelihood of interference. Accordingly, this ground fails. However, the issue of threats to the accused’s safety—arising from community hostility—remains a relevant consideration.
After considering all the materials before me, the Constitution, the law, and applicable jurisprudence, I find, in terms of Article 49(1)(h) of the Constitution and Section 123A(2)(b) of the CPC, that there exists a compelling reason to decline bail at this stage. The compelling reason is the real possibility that the accused may abscond , given that he is alleged to have fled to Uganda to evade arrest.
Consequently, the application for bond must fail on this sole ground, given the unique circumstances of this case.
Orders
Accordingly, the Court issues the following orders:
a. The application seeking the release of the accused on bond pending trial is hereby declined .
b. The hearing of the case shall be expedited , and the accused may revisit the application at a later appropriate stage.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 27TH DAY OF NOVEMBER 2025
WENDY KAGENDO
JUDGE
Appearances:
Mr. Khamisi , Learned Counsel for the Accused
Mr. Sirima , Learned Senior Assistant Director of Public Prosecutions
Ms. Bebora , Court Assistant
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