REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL CASE NO E006 OF 2026
REPUBLIC
VERSUS
MILA OLE MISHEMI……..……………..…………………………………ACCUSED
RULING
INTRODUCTION
1. The Accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya).
2. The Prosecution opposed his release on bail/bond. On 14th May 2026, it filed an Affidavit of Opposing Bail/Bond. The same was sworn by the Investigating Officer No 97238 PC Earnest Kinyua on 13th May 2026. Neither the Prosecution nor the Accused person filed any Written Submissions.
3. The Probation Office also filed its Pre-Bail Report dated 15th May 2026 on even date. The said Pre-Bail Report was by Francis Kamau, Probation Officer, Nanyuki.
LEGAL ANALYSIS
4. The Investigating Officer averred that although the Accused person had a right to be released on bail/bond, that right under Article 49(1)(h) of the Constitution of Kenya, 2010 was not an absolute right and that the same was a matter of discretion by the court.
5. He contended that the Accused person knew the witnesses and their abode. He was apprehensive that there would be interference and intimidation of the witnesses with the aim of preventing them from testifying if the Accused person was released on bail/bond.
6. He was emphatic that the Prosecution had a strong case and there was a high probability that it would secure a conviction, and because the sentence that would be meted out on the Accused person was death, he was likely to abscond if he was released on bail/bond.
7. He pointed out that the Accused person fled after committing the offence and was only arrested at Ol Pejeta Conservancy with the help of the management of the said Conservancy. He added that if it were not for the help of the Conservancy Management and Conservancy Village Coordinators, the Accused person would still be at large.
8. He further averred that the Accused person had no fixed abode or any known or familial or economic ties, should he be released on bail/bond, making it difficult for him to be traced. He further stated that it was prudent to detain the Accused person to maintain peace and order and to avoid potential revenge attacks against him. He averred that the irate mob had wanted to attack the Conservancy and take the deceased’s body there.
9. He urged this court to find that the aforesaid were compelling reasons to decline the Accused person’s application for bail/bond application.
10. The Prosecution asked this court to rely on the Affidavit to Oppose Bond in determining the Accused person’s application for bail/bond. The Accused person asked this court to admit him to reasonable bond terms as the Pre-Bail Report was positive.
11. According to the said Pre-Bail Report, the Accused person’s family had no known criminal history and the Accused person had a strong social support system with a stable employment history that had expressed her willingness to ensure that he complied with the bond terms.
12. The said Pre-Bail Report indicated that the Accused person was employed at Ol Pejeta Conservancy prior to the incident and that he had a permanent abode. The said Pre- Bail Report also indicated that the Accused person appeared to understand the seriousness of the Charge and the weight of the personal and legal consequences if he was convicted.
13. The deceased’s family was said to be still bitter and emotionally affected by the deceased’s death. However, the local administration did not object to the Accused person being released on reasonable bail/bond terms. The Probation recommended that the Accused person be released on stringent bail/ bond terms.
14. Notably, the Accused person had a fixed abode and was a married man with a family. The fact that he fled after the incident was a strong mitigating factor for the court to cautiously consider his application for bail/bond. Even so, this court noted that he was arrested at his place of work, and there was no evidence to suggest that he would have run away so as to have remained at large as the Investigating Officer had averred. The fact that the Prosecution had a strong case or the sentence the Accused person would suffer if he was convicted was severe, or that the victim’s family was still bitter after the incident, was also not sufficient reason to deny him bail/bond.
15. Indeed, Article 50(2)(a) of the Constitution of Kenya provides that every person was presumed guilty until proven guilty. The duty of determining whether a case was strong or not, or if a conviction would ensue, lay with the court. The Prosecution could not be the accuser, investigator, and the jury at the same time. Its duty was to tender the evidence in support of its case, which the court would evaluate and reach its own independent conclusion.
16. The Prosecution did not provide any evidence to show that the Accused person would interfere with the witnesses. Merely knowing witnesses was not a ground to deny an accused person bail. Denying an accused person on this ground or on the ground that the Prosecution had a strong case or that the sentence would be severe would amount to discrimination. The severity of the sentence could be mitigated by imposing stringent bail/bond terms.
17. The risk of revenge attacks by a community was a solid factor for declining an application for bail/bond. While the said Investigating Officer had stated that the ground was hostile, the local administration did not object to the Accused person being released on bail/bond.
18. It was evident from the Pre-Bail Report that the Accused person had strong social networks that were ready to support him if he was released on bail/bond. In the absence of any proof that he was a flight risk or that the community or local administration was still hostile, this court found and held that the Accused person’s right to bail/bond under Article 49 (1)(h) of the Constitution ought not to be curtailed.
DISPOSITION
19. Accordingly, the upshot of this court’s decision was that the Accused person’s application for bail/bond be and is hereby allowed. The Accused person be and is hereby released on a person bond of Kshs 300,000/= and a surety of a similar amount.
20. The Accused person be and is hereby directed not to leave his area of residence without leave of the court and to report to the nearest police at least once every week until further orders of the court.
21. It is so ordered.
DATED and DELIVERED at NANYUKI this 22 nd day of May 2026
J. KAMAU
JUDGE
HCCRC NO E006 OF 20261
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL CASE NO E006 OF 2026
REPUBLIC
VERSUS
MILA OLE MISHEMI……..……………..…………………………………ACCUSED
RULING
INTRODUCTION
1. The Accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya).
2. The Prosecution opposed his release on bail/bond. On 14th May 2026, it filed an Affidavit of Opposing Bail/Bond. The same was sworn by the Investigating Officer No 97238 PC Earnest Kinyua on 13th May 2026. Neither the Prosecution nor the Accused person filed any Written Submissions.
3. The Probation Office also filed its Pre-Bail Report dated 15th May 2026 on even date. The said Pre-Bail Report was by Francis Kamau, Probation Officer, Nanyuki.
LEGAL ANALYSIS
4. The Investigating Officer averred that although the Accused person had a right to be released on bail/bond, that right under Article 49(1)(h) of the Constitution of Kenya, 2010 was not an absolute right and that the same was a matter of discretion by the court.
5. He contended that the Accused person knew the witnesses and their abode. He was apprehensive that there would be interference and intimidation of the witnesses with the aim of preventing them from testifying if the Accused person was released on bail/bond.
6. He was emphatic that the Prosecution had a strong case and there was a high probability that it would secure a conviction, and because the sentence that would be meted out on the Accused person was death, he was likely to abscond if he was released on bail/bond.
7. He pointed out that the Accused person fled after committing the offence and was only arrested at Ol Pejeta Conservancy with the help of the management of the said Conservancy. He added that if it were not for the help of the Conservancy Management and Conservancy Village Coordinators, the Accused person would still be at large.
8. He further averred that the Accused person had no fixed abode or any known or familial or economic ties, should he be released on bail/bond, making it difficult for him to be traced. He further stated that it was prudent to detain the Accused person to maintain peace and order and to avoid potential revenge attacks against him. He averred that the irate mob had wanted to attack the Conservancy and take the deceased’s body there.
9. He urged this court to find that the aforesaid were compelling reasons to decline the Accused person’s application for bail/bond application.
10. The Prosecution asked this court to rely on the Affidavit to Oppose Bond in determining the Accused person’s application for bail/bond. The Accused person asked this court to admit him to reasonable bond terms as the Pre-Bail Report was positive.
11. According to the said Pre-Bail Report, the Accused person’s family had no known criminal history and the Accused person had a strong social support system with a stable employment history that had expressed her willingness to ensure that he complied with the bond terms.
12. The said Pre-Bail Report indicated that the Accused person was employed at Ol Pejeta Conservancy prior to the incident and that he had a permanent abode. The said Pre- Bail Report also indicated that the Accused person appeared to understand the seriousness of the Charge and the weight of the personal and legal consequences if he was convicted.
13. The deceased’s family was said to be still bitter and emotionally affected by the deceased’s death. However, the local administration did not object to the Accused person being released on reasonable bail/bond terms. The Probation recommended that the Accused person be released on stringent bail/ bond terms.
14. Notably, the Accused person had a fixed abode and was a married man with a family. The fact that he fled after the incident was a strong mitigating factor for the court to cautiously consider his application for bail/bond. Even so, this court noted that he was arrested at his place of work, and there was no evidence to suggest that he would have run away so as to have remained at large as the Investigating Officer had averred. The fact that the Prosecution had a strong case or the sentence the Accused person would suffer if he was convicted was severe, or that the victim’s family was still bitter after the incident, was also not sufficient reason to deny him bail/bond.
15. Indeed, Article 50(2)(a) of the Constitution of Kenya provides that every person was presumed guilty until proven guilty. The duty of determining whether a case was strong or not, or if a conviction would ensue, lay with the court. The Prosecution could not be the accuser, investigator, and the jury at the same time. Its duty was to tender the evidence in support of its case, which the court would evaluate and reach its own independent conclusion.
16. The Prosecution did not provide any evidence to show that the Accused person would interfere with the witnesses. Merely knowing witnesses was not a ground to deny an accused person bail. Denying an accused person on this ground or on the ground that the Prosecution had a strong case or that the sentence would be severe would amount to discrimination. The severity of the sentence could be mitigated by imposing stringent bail/bond terms.
17. The risk of revenge attacks by a community was a solid factor for declining an application for bail/bond. While the said Investigating Officer had stated that the ground was hostile, the local administration did not object to the Accused person being released on bail/bond.
18. It was evident from the Pre-Bail Report that the Accused person had strong social networks that were ready to support him if he was released on bail/bond. In the absence of any proof that he was a flight risk or that the community or local administration was still hostile, this court found and held that the Accused person’s right to bail/bond under Article 49 (1)(h) of the Constitution ought not to be curtailed.
DISPOSITION
19. Accordingly, the upshot of this court’s decision was that the Accused person’s application for bail/bond be and is hereby allowed. The Accused person be and is hereby released on a person bond of Kshs 300,000/= and a surety of a similar amount.
20. The Accused person be and is hereby directed not to leave his area of residence without leave of the court and to report to the nearest police at least once every week until further orders of the court.
21. It is so ordered.
DATED and DELIVERED at NANYUKI this 22 nd day of May 2026
J. KAMAU
JUDGE
HCCRC NO E006 OF 20261