A. BACKGROUND.
1. Randy Ochieng Muga (hereinafter referred to as “the accused”) is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
2. When the matter was placed before me on 22nd January, 2026 for plea, the accused informed the court that he is 17 years old. The court then ordered that he be subjected to age assessment and a report be filed.
3. On 11th February, 2026, Ms. Muema, learned Prosecution Counsel, informed the court that the investigating officer had obtained a copy of the accused person’s birth certificate from his mother. At the same time, a report by Dr. Ganda A.E. of Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) was placed before the court indicating that the accused’s dental age was estimated to be between 12 and 16 years.
4. The court observed that the age range of between 12 and 16 years as indicated in the medical report was rather broad and therefore insufficiently precise for the purposes of making a definitive determination on the accused’s age.
5. In light of this uncertainty, the court directed that the accused’s original birth certificate be availed for production before the court to assist in ascertaining the accused’s exact age.
6. When the matter came up for mention on 17th February, 2026, Ms. Muema informed the court that the investigating officer had obtained the accused’s birth certificate from his mother. However, she further indicated, somewhat curiously, that the accused’s mother had declined to attend court.
7. This inconsistency raised concerns regarding the authenticity and reliability of the said document, prompting the court to direct that its genuineness be verified and a report be filed by the investigating officer for the Court’s consideration.
8. On 23rd February, 2026, the investigating officer appeared before the court and presented his report. In line with the contents thereof, the officer informed the court that the birth certificate previously presented on the preceding court date was not genuine. He further produced a birth register extract indicating that the accused’s date of birth was 22nd February, 2007, from which it was concluded that the accused was 19 years old.
9. The court thereafter directed that further and more detailed investigations be undertaken with respect to the birth certificate that had been presented, with a view to establishing its authenticity and the circumstances surrounding its procurement and production.
B. THE PROSECUTION’S AFFIDAVIT.
10. The prosecution now opposes the release of the accused on bond and to that end, the investigating officer, Police Constable James Murioki filed an affidavit that he swore on 10th March, 2026. In his affidavit, he depones there exist compelling reasons to deny the accused bond.
11. He explains that during the bond proceedings, the age of the accused became a contested issue, prompting the court to direct that documentary proof of age be produced and that an independent age assessment be undertaken.
12. The investigator states that although the accused’s mother initially informed the court that she did not possess the accused’s birth certificate, an age assessment was subsequently conducted at JOOTRH. According to the assessment, the accused’s dental age was estimated to be between 12 and 16 years.
13. The deponent further states that after the age assessment had been completed, the accused’s mother produced a birth certificate indicating that the accused was born on 22nd August, 2009, thereby suggesting that he was approximately sixteen years old.
14. According to the investigating officer, the late production of the birth certificate, coupled with the mother’s earlier assertion that no such document existed, raised suspicion regarding the authenticity of the document. He states that verification was consequently undertaken through the Office of the Registrar of Births and Deaths.
15. He avers that the verification revealed that the official records corresponding to the same birth entry number reflected the accused’s date of birth as 22nd February, 2007 and not 22nd August, 2009 as indicated in the certificate produced before the court.
16. In his view, this discrepancy is material and irreconcilable and places the accused within the category of an adult aged approximately eighteen to nineteen years.
17. The investigating officer contends that the discrepancy strongly suggests that the birth certificate produced by the accused’s mother is forged and was intended to mislead the court regarding the accused’s true age so as to influence the court’s determination on bond. He further deposes that the presentation of a forged document constitutes an attempt to obstruct the course of justice.
18. The officer adds that the age assessment report does not conclusively establish that the accused is a minor and, given the margin of error associated with dental age assessments, does not exclude the possibility that the accused is older. He therefore maintains that the official records of the Registrar of Births and Deaths should be preferred.
19. The deponent further states that the accused faces a charge of murder, a grave offence carrying severe penal consequences upon conviction. He contends that the seriousness of the charge gives the accused a strong incentive to abscond and avoid trial.
20. He also asserts that the conduct attributed to the accused’s family in allegedly procuring and presenting a forged birth certificate demonstrates a willingness to interfere with the administration of justice. Consequently, he expresses apprehension that, if released on bond, the accused may interfere with witnesses or manipulate evidence.
21. The investigating officer further describes the accused as a flight risk. He states that the severity of the potential punishment, coupled with the conduct of those acting on the accused’s behalf, raises legitimate concerns that the accused may fail to attend court if released. He additionally deposes that no credible sureties or sufficient assurances have been offered to guarantee the accused’s attendance throughout the trial.
22. The deponent further avers that the accused’s own safety cannot presently be guaranteed within the community. He states that the deceased’s death has generated anger and hostility among members of the local community and the deceased’s family and that there exists a real risk of retaliatory action against the accused should he be released. In his view, continued remand would not only serve the interests of justice but would also afford the accused protection from possible harm.
23. On the basis of the foregoing matters, the investigating officer urges the court to find that compelling reasons exist for the continued detention of the accused and to deny him bond pending the hearing and determination of the case.
C. THE ACCUSED’S AFFIDAVIT.
24. The accused resists the prosecution’s application for denial of bond and to that end filed a replying affidavit that he swore on 5th June, 2026 in which he states that the prosecution has failed to demonstrate any compelling reasons capable of justifying the limitation of his constitutional right to bail and bond.
25. He further deposes that the pre-bail report dated 14th April, 2026 did not recommend that he be denied bond and instead left the issue to the discretion of the court.
26. Regarding the issue of his age, the accused states that he informed the court of what he believed to be his age based on his own recollection of events from childhood. He maintains that any misinformation given by his mother concerning his age should not be used against him or undermine his genuine belief as to his age.
27. The accused further avers that the age assessment conducted by the medical officer supported his belief that he had not attained the age of eighteen years.
28. In response to the allegations concerning the disputed birth certificate, he states that the document was produced while he was in custody at Kisumu Central Police Station and that he played no role in its procurement or production before the court. He asserts that he had never seen the birth certificate before and had no knowledge of its contents.
29. He further points out that the birth certificate was in fact produced before the court by the investigating officer, who now alleges impropriety in relation to the same document. The accused therefore denies any involvement in the alleged falsification or presentation of the document.
30. The accused contends that it would be prejudicial and unconstitutional to deny him bond on the basis of uncertainties arising from the age assessment report, particularly where any discrepancies or margin of error in the report were matters beyond his control.
31. He further states that the issue presently before the court is his suitability for release on bond and not the question of his age, which he contends has already been determined by the court in accordance with the provisions of the Children Act.
32. The accused also invokes Articles 27 and 48 of the Constitution, arguing that all persons are entitled to equal protection of the law and access to justice, including persons charged with criminal offences who are presumed innocent until proven guilty.
33. While acknowledging the seriousness of the offence with which he is charged, he maintains that Article 49 of the Constitution guarantees the right to bail irrespective of the nature of the charge, subject only to the existence of compelling reasons.
34. He further disputes the prosecution’s contention that he presents a heightened flight risk on account of the sentence attached to the offence of murder, arguing that the mandatory nature of such sentences has since been declared unconstitutional and cannot therefore be relied upon to infer a likelihood of absconding.
35. The accused also contends that his right to bond should not be curtailed on account of the alleged conduct of a member of his family. He maintains that any actions attributed to his mother were undertaken without his knowledge, participation or consent and cannot properly be used to infer that he would interfere with witnesses or otherwise obstruct the course of justice.
36. He further states that he has not been afforded an opportunity to present proposed sureties and therefore considers it unfair for the prosecution to assert that he lacks credible sureties or adequate assurances for attendance in court.
37. With regard to the allegation that his safety would be at risk if released, the accused avers that no evidence has been presented to support that assertion. He further states that he has relatives residing in other parts of Kisumu City who are willing to accommodate him during the pendency of the trial, thereby minimizing any potential risk arising from his return to the locality where the offence is alleged to have occurred.
38. In conclusion, the accused urges the court to separate the issue of the disputed birth certificate from the question of his entitlement to bond. He maintains that he was unaware of, and did not participate in, any alleged irregularities surrounding the document and that he has not engaged in any conduct intended to undermine the administration of justice. He therefore prays that he be admitted to bond pending the hearing and determination of the case.
D. ISSUES FOR DETERMINATION.
39. I have carefully considered the rival affidavits filed by the parties, the pre-bail report on record, the constitutional and statutory framework governing the grant of bail and the circumstances of this case. In my view, the following issues arise for determination:
a. Whether the prosecution has discharged the burden placed upon it by Article 49(1)(h) of the Constitution by demonstrating the existence of compelling reasons sufficient to justify the denial of bond to the accused pending the hearing and determination of the trial.
b. In the event that the Court finds that no compelling reasons have been established, whether the accused is entitled to be admitted to bond pending trial in accordance with Article 49(1)(h) of the Constitution.
c. Should the Court answer the second issue in the affirmative, a further question arises as to the appropriate terms and conditions upon which such bond ought to be granted.
40. It is therefore upon the resolution of the foregoing issues that the Court’s determination on the accused’s application for release on bond shall turn.
E. ANALYSIS AND FINDINGS.
41. The right to bail is guaranteed under Article 49(1)(h) of the Constitution which provides that 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. The constitutional position is therefore that liberty is the norm and pre-trial detention the exception. The burden of demonstrating the existence of compelling reasons rests squarely upon the prosecution.
42. The phrase “compelling reasons” is not defined in either the Constitution or the Criminal Procedure Code. Courts have however consistently held that compelling reasons are reasons that are forceful, convincing, real and cogent enough to make the court feel strongly that an accused person should not be released on bond. Bail cannot be denied on speculation, suspicion, conjecture or flimsy grounds. The reasons advanced must attain the high constitutional threshold required for the limitation of a fundamental right.
43. As regards the applicable standard of proof, the Bail and Bond Policy Guidelines require the prosecution to establish the existence of compelling reasons on a balance of probabilities. Although the burden is not as onerous as proof beyond reasonable doubt, the evidence placed before the court must nevertheless be credible, cogent and capable of demonstrating that the apprehended risk is real rather than speculative.
44. The first issue for determination is therefore whether the prosecution has discharged that burden in the present case.
45. The prosecution’s primary argument is founded upon the disputed birth certificate. The investigating officer contends that the certificate produced before the court was forged and that its production amounted to an attempt to mislead the court regarding the accused’s age.
46. The court has no difficulty in finding that the circumstances surrounding the production of the certificate are troubling. Indeed, the record shows that the authenticity of the document was successfully challenged through verification undertaken by the Registrar of Births and Deaths.
47. However, the crucial question is not whether the document was irregular or even forged. The question is whether the accused himself participated in the procurement, preparation or presentation of the impugned document so as to justify the denial of his constitutional right to bond.
48. Upon considering the material placed before the court, I find no evidence directly linking the accused to the procurement or production of the disputed birth certificate. It is not disputed that the accused was in custody when the document was obtained and presented before the court. It is further not disputed that the document was allegedly obtained from the accused’s mother and eventually produced through the investigating officer.
49. Whereas suspicion may legitimately arise regarding the conduct of persons who facilitated the production of the document, suspicion alone cannot be elevated into proof against the accused. The prosecution has not placed before the court any evidence demonstrating that the accused instructed, encouraged, procured or participated in the production of the disputed certificate.
50. I therefore agree with the accused that it would be unsafe and prejudicial to curtail his liberty on the basis of conduct that has not been shown, even prima facie, to be attributable to him personally.
51. The prosecution further argues that the conduct surrounding the disputed certificate demonstrates a likelihood of interference with witnesses and manipulation of evidence.
52. Interference with witnesses undoubtedly constitutes a compelling reason capable of justifying denial of bond. Such interference strikes at the heart of the administration of justice and may, where proved, justify limitation of the right to liberty.
53. Nevertheless, allegations of witness interference must be supported by evidence. There must be material from which the court can reasonably infer that the accused has attempted, or is likely, to influence, intimidate, threaten or improperly approach witnesses.
54. In the present case, no witness has sworn an affidavit alleging threats, intimidation or interference by the accused. No investigative material has been placed before the court demonstrating any attempt by the accused to contact witnesses. No particulars have been provided regarding any alleged manipulation of evidence.
55. The prosecution’s apprehension appears to flow principally from the disputed birth certificate. Having already found that the accused has not been linked to the procurement or presentation of that document, I am unable to conclude that there exists a real and demonstrable likelihood of witness interference. The prosecution has therefore failed to establish this ground to the required standard.
56. The next ground relied upon is that the accused is a flight risk owing to the seriousness of the charge and the severe punishment that may follow upon conviction.
57. There is no doubt that murder is a serious offence. However, the seriousness of a charge, standing alone, is not a compelling reason for denial of bond. If it were otherwise, every person charged with murder would automatically be denied bond, a position that would be inconsistent with Article 49(1)(h) of the Constitution.
58. The court must therefore look beyond the gravity of the charge and examine whether there are objective indicators demonstrating a likelihood of absconding.
59. In the present case, the prosecution has not demonstrated any previous attempt by the accused to flee, evade arrest, disobey court orders or abscond from lawful process. There is no evidence that he lacks community ties or a fixed abode.
60. The assertion that the accused may abscond because of the seriousness of the charge remains speculative and unsupported by objective evidence. I therefore find that the allegation of flight risk has not been established on a balance of probabilities.
61. The prosecution also contends that the accused’s safety cannot be guaranteed because the death of the deceased has generated hostility within the local community.
62. Protection of an accused person may in appropriate circumstances constitute a relevant consideration in bail proceedings. However, the court must be presented with evidence demonstrating that the perceived threat is real, immediate and substantial.
63. In the present case, there is no evidence demonstrating actual threats directed at the accused that has been placed before the court to substantiate the alleged hostility. The court is therefore left with a bare assertion that the community is hostile to the accused.
64. While the court does not discount the possibility that emotions may run high following the loss of life, judicial determinations must be grounded on evidence and not conjecture. I therefore find that the alleged threat to the accused’s safety has not been proved to the standard required for denial of bond.
65. Having carefully evaluated all the grounds advanced by the prosecution, I am not satisfied that any of them, either individually or collectively, rise to the level of compelling reasons contemplated under Article 49(1)(h) of the Constitution.
66. I accordingly find that the prosecution has failed to discharge the burden of establishing compelling reasons sufficient to justify the continued detention of the accused pending trial.
67. Having reached that conclusion, it follows that the accused is entitled to the enjoyment of his constitutional right to reasonable bail pending trial.
68. The remaining issue concerns the appropriate terms upon which that right should be enjoyed.
69. In setting bond terms, the court must strike a balance between the accused’s constitutional right to liberty and the public interest in securing his attendance at trial and preserving the integrity of the proceedings.
70. Although I have found that the allegation of threats to the accused’s safety has not been proved, prudence dictates that measures be put in place to minimise the possibility of tension between the accused and members of the community connected with the deceased.
71. The accused himself has indicated that he has relatives residing in other parts of Kisumu County who are willing to accommodate him during the pendency of the case. That proposal appears reasonable and capable of addressing any residual concerns regarding contact between the accused and persons connected with the case.
F. CONCLUSION AND DISPOSITION.
72. Consequently, the accused may be released upon securing a bond of Ksh.800,000/- with one surety of a similar amount, to be approved by the Deputy Registrar.
73. In addition, and for the avoidance of doubt, the accused shall not reside in, visit, or in any manner return to Lela Village, Kobura Location, Nyando Sub-County, being the locality where the offence is alleged to have occurred, during the pendency of the trial, unless with prior leave of the court.
74. The accused shall further attend court whenever required, shall not directly or indirectly contact, intimidate, influence or interfere with any prosecution witness and shall keep the investigating officer informed of his place of residence during the pendency of the trial.
75. Any breach of the foregoing conditions shall render the bond liable to cancellation.
76. It is so ordered.
DELIVERED (virtually), SIGNED & DATED this 15th day of June, 2026.
JOE M. OMIDO
JUDGE
ACCUSED: Present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Mr. Lore & Mr. Gweth.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
Court: The trial shall proceed on 1st December, 2026.
JOE M. OMIDO
JUDGE
1. Randy Ochieng Muga (hereinafter referred to as “the accused”) is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
2. When the matter was placed before me on 22nd January, 2026 for plea, the accused informed the court that he is 17 years old. The court then ordered that he be subjected to age assessment and a report be filed.
3. On 11th February, 2026, Ms. Muema, learned Prosecution Counsel, informed the court that the investigating officer had obtained a copy of the accused person’s birth certificate from his mother. At the same time, a report by Dr. Ganda A.E. of Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) was placed before the court indicating that the accused’s dental age was estimated to be between 12 and 16 years.
4. The court observed that the age range of between 12 and 16 years as indicated in the medical report was rather broad and therefore insufficiently precise for the purposes of making a definitive determination on the accused’s age.
5. In light of this uncertainty, the court directed that the accused’s original birth certificate be availed for production before the court to assist in ascertaining the accused’s exact age.
6. When the matter came up for mention on 17th February, 2026, Ms. Muema informed the court that the investigating officer had obtained the accused’s birth certificate from his mother. However, she further indicated, somewhat curiously, that the accused’s mother had declined to attend court.
7. This inconsistency raised concerns regarding the authenticity and reliability of the said document, prompting the court to direct that its genuineness be verified and a report be filed by the investigating officer for the Court’s consideration.
8. On 23rd February, 2026, the investigating officer appeared before the court and presented his report. In line with the contents thereof, the officer informed the court that the birth certificate previously presented on the preceding court date was not genuine. He further produced a birth register extract indicating that the accused’s date of birth was 22nd February, 2007, from which it was concluded that the accused was 19 years old.
9. The court thereafter directed that further and more detailed investigations be undertaken with respect to the birth certificate that had been presented, with a view to establishing its authenticity and the circumstances surrounding its procurement and production.
B. THE PROSECUTION’S AFFIDAVIT.
10. The prosecution now opposes the release of the accused on bond and to that end, the investigating officer, Police Constable James Murioki filed an affidavit that he swore on 10th March, 2026. In his affidavit, he depones there exist compelling reasons to deny the accused bond.
11. He explains that during the bond proceedings, the age of the accused became a contested issue, prompting the court to direct that documentary proof of age be produced and that an independent age assessment be undertaken.
12. The investigator states that although the accused’s mother initially informed the court that she did not possess the accused’s birth certificate, an age assessment was subsequently conducted at JOOTRH. According to the assessment, the accused’s dental age was estimated to be between 12 and 16 years.
13. The deponent further states that after the age assessment had been completed, the accused’s mother produced a birth certificate indicating that the accused was born on 22nd August, 2009, thereby suggesting that he was approximately sixteen years old.
14. According to the investigating officer, the late production of the birth certificate, coupled with the mother’s earlier assertion that no such document existed, raised suspicion regarding the authenticity of the document. He states that verification was consequently undertaken through the Office of the Registrar of Births and Deaths.
15. He avers that the verification revealed that the official records corresponding to the same birth entry number reflected the accused’s date of birth as 22nd February, 2007 and not 22nd August, 2009 as indicated in the certificate produced before the court.
16. In his view, this discrepancy is material and irreconcilable and places the accused within the category of an adult aged approximately eighteen to nineteen years.
17. The investigating officer contends that the discrepancy strongly suggests that the birth certificate produced by the accused’s mother is forged and was intended to mislead the court regarding the accused’s true age so as to influence the court’s determination on bond. He further deposes that the presentation of a forged document constitutes an attempt to obstruct the course of justice.
18. The officer adds that the age assessment report does not conclusively establish that the accused is a minor and, given the margin of error associated with dental age assessments, does not exclude the possibility that the accused is older. He therefore maintains that the official records of the Registrar of Births and Deaths should be preferred.
19. The deponent further states that the accused faces a charge of murder, a grave offence carrying severe penal consequences upon conviction. He contends that the seriousness of the charge gives the accused a strong incentive to abscond and avoid trial.
20. He also asserts that the conduct attributed to the accused’s family in allegedly procuring and presenting a forged birth certificate demonstrates a willingness to interfere with the administration of justice. Consequently, he expresses apprehension that, if released on bond, the accused may interfere with witnesses or manipulate evidence.
21. The investigating officer further describes the accused as a flight risk. He states that the severity of the potential punishment, coupled with the conduct of those acting on the accused’s behalf, raises legitimate concerns that the accused may fail to attend court if released. He additionally deposes that no credible sureties or sufficient assurances have been offered to guarantee the accused’s attendance throughout the trial.
22. The deponent further avers that the accused’s own safety cannot presently be guaranteed within the community. He states that the deceased’s death has generated anger and hostility among members of the local community and the deceased’s family and that there exists a real risk of retaliatory action against the accused should he be released. In his view, continued remand would not only serve the interests of justice but would also afford the accused protection from possible harm.
23. On the basis of the foregoing matters, the investigating officer urges the court to find that compelling reasons exist for the continued detention of the accused and to deny him bond pending the hearing and determination of the case.
C. THE ACCUSED’S AFFIDAVIT.
24. The accused resists the prosecution’s application for denial of bond and to that end filed a replying affidavit that he swore on 5th June, 2026 in which he states that the prosecution has failed to demonstrate any compelling reasons capable of justifying the limitation of his constitutional right to bail and bond.
25. He further deposes that the pre-bail report dated 14th April, 2026 did not recommend that he be denied bond and instead left the issue to the discretion of the court.
26. Regarding the issue of his age, the accused states that he informed the court of what he believed to be his age based on his own recollection of events from childhood. He maintains that any misinformation given by his mother concerning his age should not be used against him or undermine his genuine belief as to his age.
27. The accused further avers that the age assessment conducted by the medical officer supported his belief that he had not attained the age of eighteen years.
28. In response to the allegations concerning the disputed birth certificate, he states that the document was produced while he was in custody at Kisumu Central Police Station and that he played no role in its procurement or production before the court. He asserts that he had never seen the birth certificate before and had no knowledge of its contents.
29. He further points out that the birth certificate was in fact produced before the court by the investigating officer, who now alleges impropriety in relation to the same document. The accused therefore denies any involvement in the alleged falsification or presentation of the document.
30. The accused contends that it would be prejudicial and unconstitutional to deny him bond on the basis of uncertainties arising from the age assessment report, particularly where any discrepancies or margin of error in the report were matters beyond his control.
31. He further states that the issue presently before the court is his suitability for release on bond and not the question of his age, which he contends has already been determined by the court in accordance with the provisions of the Children Act.
32. The accused also invokes Articles 27 and 48 of the Constitution, arguing that all persons are entitled to equal protection of the law and access to justice, including persons charged with criminal offences who are presumed innocent until proven guilty.
33. While acknowledging the seriousness of the offence with which he is charged, he maintains that Article 49 of the Constitution guarantees the right to bail irrespective of the nature of the charge, subject only to the existence of compelling reasons.
34. He further disputes the prosecution’s contention that he presents a heightened flight risk on account of the sentence attached to the offence of murder, arguing that the mandatory nature of such sentences has since been declared unconstitutional and cannot therefore be relied upon to infer a likelihood of absconding.
35. The accused also contends that his right to bond should not be curtailed on account of the alleged conduct of a member of his family. He maintains that any actions attributed to his mother were undertaken without his knowledge, participation or consent and cannot properly be used to infer that he would interfere with witnesses or otherwise obstruct the course of justice.
36. He further states that he has not been afforded an opportunity to present proposed sureties and therefore considers it unfair for the prosecution to assert that he lacks credible sureties or adequate assurances for attendance in court.
37. With regard to the allegation that his safety would be at risk if released, the accused avers that no evidence has been presented to support that assertion. He further states that he has relatives residing in other parts of Kisumu City who are willing to accommodate him during the pendency of the trial, thereby minimizing any potential risk arising from his return to the locality where the offence is alleged to have occurred.
38. In conclusion, the accused urges the court to separate the issue of the disputed birth certificate from the question of his entitlement to bond. He maintains that he was unaware of, and did not participate in, any alleged irregularities surrounding the document and that he has not engaged in any conduct intended to undermine the administration of justice. He therefore prays that he be admitted to bond pending the hearing and determination of the case.
D. ISSUES FOR DETERMINATION.
39. I have carefully considered the rival affidavits filed by the parties, the pre-bail report on record, the constitutional and statutory framework governing the grant of bail and the circumstances of this case. In my view, the following issues arise for determination:
a. Whether the prosecution has discharged the burden placed upon it by Article 49(1)(h) of the Constitution by demonstrating the existence of compelling reasons sufficient to justify the denial of bond to the accused pending the hearing and determination of the trial.
b. In the event that the Court finds that no compelling reasons have been established, whether the accused is entitled to be admitted to bond pending trial in accordance with Article 49(1)(h) of the Constitution.
c. Should the Court answer the second issue in the affirmative, a further question arises as to the appropriate terms and conditions upon which such bond ought to be granted.
40. It is therefore upon the resolution of the foregoing issues that the Court’s determination on the accused’s application for release on bond shall turn.
E. ANALYSIS AND FINDINGS.
41. The right to bail is guaranteed under Article 49(1)(h) of the Constitution which provides that 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. The constitutional position is therefore that liberty is the norm and pre-trial detention the exception. The burden of demonstrating the existence of compelling reasons rests squarely upon the prosecution.
42. The phrase “compelling reasons” is not defined in either the Constitution or the Criminal Procedure Code. Courts have however consistently held that compelling reasons are reasons that are forceful, convincing, real and cogent enough to make the court feel strongly that an accused person should not be released on bond. Bail cannot be denied on speculation, suspicion, conjecture or flimsy grounds. The reasons advanced must attain the high constitutional threshold required for the limitation of a fundamental right.
43. As regards the applicable standard of proof, the Bail and Bond Policy Guidelines require the prosecution to establish the existence of compelling reasons on a balance of probabilities. Although the burden is not as onerous as proof beyond reasonable doubt, the evidence placed before the court must nevertheless be credible, cogent and capable of demonstrating that the apprehended risk is real rather than speculative.
44. The first issue for determination is therefore whether the prosecution has discharged that burden in the present case.
45. The prosecution’s primary argument is founded upon the disputed birth certificate. The investigating officer contends that the certificate produced before the court was forged and that its production amounted to an attempt to mislead the court regarding the accused’s age.
46. The court has no difficulty in finding that the circumstances surrounding the production of the certificate are troubling. Indeed, the record shows that the authenticity of the document was successfully challenged through verification undertaken by the Registrar of Births and Deaths.
47. However, the crucial question is not whether the document was irregular or even forged. The question is whether the accused himself participated in the procurement, preparation or presentation of the impugned document so as to justify the denial of his constitutional right to bond.
48. Upon considering the material placed before the court, I find no evidence directly linking the accused to the procurement or production of the disputed birth certificate. It is not disputed that the accused was in custody when the document was obtained and presented before the court. It is further not disputed that the document was allegedly obtained from the accused’s mother and eventually produced through the investigating officer.
49. Whereas suspicion may legitimately arise regarding the conduct of persons who facilitated the production of the document, suspicion alone cannot be elevated into proof against the accused. The prosecution has not placed before the court any evidence demonstrating that the accused instructed, encouraged, procured or participated in the production of the disputed certificate.
50. I therefore agree with the accused that it would be unsafe and prejudicial to curtail his liberty on the basis of conduct that has not been shown, even prima facie, to be attributable to him personally.
51. The prosecution further argues that the conduct surrounding the disputed certificate demonstrates a likelihood of interference with witnesses and manipulation of evidence.
52. Interference with witnesses undoubtedly constitutes a compelling reason capable of justifying denial of bond. Such interference strikes at the heart of the administration of justice and may, where proved, justify limitation of the right to liberty.
53. Nevertheless, allegations of witness interference must be supported by evidence. There must be material from which the court can reasonably infer that the accused has attempted, or is likely, to influence, intimidate, threaten or improperly approach witnesses.
54. In the present case, no witness has sworn an affidavit alleging threats, intimidation or interference by the accused. No investigative material has been placed before the court demonstrating any attempt by the accused to contact witnesses. No particulars have been provided regarding any alleged manipulation of evidence.
55. The prosecution’s apprehension appears to flow principally from the disputed birth certificate. Having already found that the accused has not been linked to the procurement or presentation of that document, I am unable to conclude that there exists a real and demonstrable likelihood of witness interference. The prosecution has therefore failed to establish this ground to the required standard.
56. The next ground relied upon is that the accused is a flight risk owing to the seriousness of the charge and the severe punishment that may follow upon conviction.
57. There is no doubt that murder is a serious offence. However, the seriousness of a charge, standing alone, is not a compelling reason for denial of bond. If it were otherwise, every person charged with murder would automatically be denied bond, a position that would be inconsistent with Article 49(1)(h) of the Constitution.
58. The court must therefore look beyond the gravity of the charge and examine whether there are objective indicators demonstrating a likelihood of absconding.
59. In the present case, the prosecution has not demonstrated any previous attempt by the accused to flee, evade arrest, disobey court orders or abscond from lawful process. There is no evidence that he lacks community ties or a fixed abode.
60. The assertion that the accused may abscond because of the seriousness of the charge remains speculative and unsupported by objective evidence. I therefore find that the allegation of flight risk has not been established on a balance of probabilities.
61. The prosecution also contends that the accused’s safety cannot be guaranteed because the death of the deceased has generated hostility within the local community.
62. Protection of an accused person may in appropriate circumstances constitute a relevant consideration in bail proceedings. However, the court must be presented with evidence demonstrating that the perceived threat is real, immediate and substantial.
63. In the present case, there is no evidence demonstrating actual threats directed at the accused that has been placed before the court to substantiate the alleged hostility. The court is therefore left with a bare assertion that the community is hostile to the accused.
64. While the court does not discount the possibility that emotions may run high following the loss of life, judicial determinations must be grounded on evidence and not conjecture. I therefore find that the alleged threat to the accused’s safety has not been proved to the standard required for denial of bond.
65. Having carefully evaluated all the grounds advanced by the prosecution, I am not satisfied that any of them, either individually or collectively, rise to the level of compelling reasons contemplated under Article 49(1)(h) of the Constitution.
66. I accordingly find that the prosecution has failed to discharge the burden of establishing compelling reasons sufficient to justify the continued detention of the accused pending trial.
67. Having reached that conclusion, it follows that the accused is entitled to the enjoyment of his constitutional right to reasonable bail pending trial.
68. The remaining issue concerns the appropriate terms upon which that right should be enjoyed.
69. In setting bond terms, the court must strike a balance between the accused’s constitutional right to liberty and the public interest in securing his attendance at trial and preserving the integrity of the proceedings.
70. Although I have found that the allegation of threats to the accused’s safety has not been proved, prudence dictates that measures be put in place to minimise the possibility of tension between the accused and members of the community connected with the deceased.
71. The accused himself has indicated that he has relatives residing in other parts of Kisumu County who are willing to accommodate him during the pendency of the case. That proposal appears reasonable and capable of addressing any residual concerns regarding contact between the accused and persons connected with the case.
F. CONCLUSION AND DISPOSITION.
72. Consequently, the accused may be released upon securing a bond of Ksh.800,000/- with one surety of a similar amount, to be approved by the Deputy Registrar.
73. In addition, and for the avoidance of doubt, the accused shall not reside in, visit, or in any manner return to Lela Village, Kobura Location, Nyando Sub-County, being the locality where the offence is alleged to have occurred, during the pendency of the trial, unless with prior leave of the court.
74. The accused shall further attend court whenever required, shall not directly or indirectly contact, intimidate, influence or interfere with any prosecution witness and shall keep the investigating officer informed of his place of residence during the pendency of the trial.
75. Any breach of the foregoing conditions shall render the bond liable to cancellation.
76. It is so ordered.
DELIVERED (virtually), SIGNED & DATED this 15th day of June, 2026.
JOE M. OMIDO
JUDGE
ACCUSED: Present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Mr. Lore & Mr. Gweth.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
Court: The trial shall proceed on 1st December, 2026.
JOE M. OMIDO
JUDGE