The Subjects herein are charged with the offence of Murder Contrary to section 203 as read with section 204 of the penal code. The particulars are that on 9th day of January 2026 at around 2000hrs at SHAFSHAFEY Location, Mandera East Sub-County, Mandera County Murdered ZAKARIA MUKTAR. The 2nd, 3rd and 4th subjects were initially charged together but later upon the arrest of the 1st subject the matters were consolidated.
When the matter came up for plea on the consolidated charge, on 6th may 2026, Mr. Namiti prosecuting Counsel requested the court to defer consideration of bail application pending filing of an affidavit in opposition to the same. The request was granted. An affidavit was subsequently filed in opposition to bail/bond in respect to the 1st subject. The investigating officer NO 110597 KEVIN MAINA deponed that the 1st and the 4th subjects are a flight risk and they should not be granted bail or bond pending the hearing and determination of the case. It is deponed that it took extra effort and resources to arrest the subjects who had fled to the neighbouring country, Ethiopia after committing the alleged offence. It is further stated that it took the intervention of the DCIO and the DCC Mandera East to convince their counterpart in Ethiopia to arrest the subject and presented them to Kenya for processing.
The prosecution contends that the situation on the ground is volatile and if the subject is released at this stage of the case, his life will be in danger.
Counsel for the subject Mr Nyipolo submitted orally in support for grant of bail to the subject pending trial contending that the 2nd, 3rd and 4th subjects were granted bond and cash bail and therefore there is no reason to accord the 1st subject a different treatment. On the allegation that the subject is a flight risk, has no known fixed abode and the possibility that if released is likely to interfere with witnesses, counsel submit that the pre- bail report records the contrary. The pre- bail report confirms the subject residence and the fact that he lives with his mother. as regards the apprehension that the subject security could be compromised, counsel submit that it is the duty of the state to ensure the subject safety and that should not be used to deprive him of his constitutional right to bail and bond.
The pre bail report was sought pursuant to section 9 and 10 of the Victim Protection Act. The report indicates that family of the accused especially his father support his release on bail while assuring the court that his family is willing to take responsibility to ensure that he attends the court.
The victim’s family on the other hand, is still grieving over the loss of their loved one aged 28byears at the time. The family are apprehensive that granting the subject bail at this stage of the trial, is likely to compromise safety and escalate tension with the locality.
The report substantially recommends that the subject do remain in custody pending stabilization of the situation and further direction of the court while taking into account the interest of the minor and the need to safeguard public peace and security.
I have considered the pre-bail report and the rival submissions by the state and counsel for the accused. Indeed, under Article 49 (1) of the constitution 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. In Republic vs Mayende & 3 others (2012) KEHC 5551 KLR, the court observed that compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. In Muraguri vs Republic (1989) klr 181, the court in determining an application for bail or bail should take into account the following factors; the nature of the offence; the likely sentence; previous criminal records, the views of the family of the victims, the possibility of interference with witnesses, the temptation to abscond and the safety of the accused person.
The subject and his co- subjects are facing a serious charge of murder whose sentence if charged is proved and conviction sustained, is severe. The pre bail reported captured the views of the accused family and that of the victim. It is clear that there is palpable anger on the part of the victim’s family who are yet to come to terms with the death of their loved one.
The overarching objective of bail is to guarantee the accused attendance during trial as and when required by the court.
The 1st subject is jointly charged with three others present before the court with the offence of Murder. This court (Onyiego J) had on 19th February 2026 considered and granted bond/bail in respect to the 4th subject Abdiwahid Abubakar and on 3rd march 2026 granted the 2nd and 3rd subjects similar bond terms of Ksh.1,000,000 with and alternative Cash bail of ksh 500,000.
While I appreciate the states concerns and the apprehension that the subject is a flight risk and other security considerations, I do not see why the 1st subject application should be treated differently from those of his co-subjects in the murder charge.
In the circumstances, I allow the application and order that the applicant shall be released on a 1,000,000 Bond with one surety of like amount and in the alternative, cash bail of 5,000,000.
When the matter came up for plea on the consolidated charge, on 6th may 2026, Mr. Namiti prosecuting Counsel requested the court to defer consideration of bail application pending filing of an affidavit in opposition to the same. The request was granted. An affidavit was subsequently filed in opposition to bail/bond in respect to the 1st subject. The investigating officer NO 110597 KEVIN MAINA deponed that the 1st and the 4th subjects are a flight risk and they should not be granted bail or bond pending the hearing and determination of the case. It is deponed that it took extra effort and resources to arrest the subjects who had fled to the neighbouring country, Ethiopia after committing the alleged offence. It is further stated that it took the intervention of the DCIO and the DCC Mandera East to convince their counterpart in Ethiopia to arrest the subject and presented them to Kenya for processing.
The prosecution contends that the situation on the ground is volatile and if the subject is released at this stage of the case, his life will be in danger.
Counsel for the subject Mr Nyipolo submitted orally in support for grant of bail to the subject pending trial contending that the 2nd, 3rd and 4th subjects were granted bond and cash bail and therefore there is no reason to accord the 1st subject a different treatment. On the allegation that the subject is a flight risk, has no known fixed abode and the possibility that if released is likely to interfere with witnesses, counsel submit that the pre- bail report records the contrary. The pre- bail report confirms the subject residence and the fact that he lives with his mother. as regards the apprehension that the subject security could be compromised, counsel submit that it is the duty of the state to ensure the subject safety and that should not be used to deprive him of his constitutional right to bail and bond.
The pre bail report was sought pursuant to section 9 and 10 of the Victim Protection Act. The report indicates that family of the accused especially his father support his release on bail while assuring the court that his family is willing to take responsibility to ensure that he attends the court.
The victim’s family on the other hand, is still grieving over the loss of their loved one aged 28byears at the time. The family are apprehensive that granting the subject bail at this stage of the trial, is likely to compromise safety and escalate tension with the locality.
The report substantially recommends that the subject do remain in custody pending stabilization of the situation and further direction of the court while taking into account the interest of the minor and the need to safeguard public peace and security.
I have considered the pre-bail report and the rival submissions by the state and counsel for the accused. Indeed, under Article 49 (1) of the constitution 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. In Republic vs Mayende & 3 others (2012) KEHC 5551 KLR, the court observed that compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. In Muraguri vs Republic (1989) klr 181, the court in determining an application for bail or bail should take into account the following factors; the nature of the offence; the likely sentence; previous criminal records, the views of the family of the victims, the possibility of interference with witnesses, the temptation to abscond and the safety of the accused person.
The subject and his co- subjects are facing a serious charge of murder whose sentence if charged is proved and conviction sustained, is severe. The pre bail reported captured the views of the accused family and that of the victim. It is clear that there is palpable anger on the part of the victim’s family who are yet to come to terms with the death of their loved one.
The overarching objective of bail is to guarantee the accused attendance during trial as and when required by the court.
The 1st subject is jointly charged with three others present before the court with the offence of Murder. This court (Onyiego J) had on 19th February 2026 considered and granted bond/bail in respect to the 4th subject Abdiwahid Abubakar and on 3rd march 2026 granted the 2nd and 3rd subjects similar bond terms of Ksh.1,000,000 with and alternative Cash bail of ksh 500,000.
While I appreciate the states concerns and the apprehension that the subject is a flight risk and other security considerations, I do not see why the 1st subject application should be treated differently from those of his co-subjects in the murder charge.
In the circumstances, I allow the application and order that the applicant shall be released on a 1,000,000 Bond with one surety of like amount and in the alternative, cash bail of 5,000,000.