1. The application by the accused person herein is made pursuant to Articles 49(1)(h) and 50 of the Constitution of Kenya and the inherent jurisdiction of the court. It is for orders that:
a. The court be pleased to grant the accused/applicant temporary release from remand custody under police/prison escort to enable him attend the burial of his late mother scheduled for 10th February 2026 at Likoni Location at 4:00 p.m.
b. The said temporary release be strictly limited to the purpose of attending the burial and that the accused/applicant shall be returned to lawful custody immediately thereafter.
c. The Officer in Charge, Shimo la Tewa Prison, be directed to facilitate compliance with this Order.
2. The grounds in support of the application as laid out on the face thereof and expounded in the affidavit of the applicant Rsshid Salim Guya sworn on 10th February 2026 are that the applicant is charged with the offence of murder and is currently in remand custody at Shimo la Tewa Prison. I have perused his file and I note that the hearing is finalized and the matter is awaiting judgment on 5th March 2026.
3. The applicant deposes that his mother passed away on the evening of 9th February 2026 and the burial is scheduled for 10th February 2026 at Likoni Location at 4:00 p.m. Further that the applicant has been unable to secure bond due to financial incapacity. He therefore seeks attendance at his mother’s burial strictly under escort. He deposes that attendance at a parent's burial is a compelling humanitarian ground. Further that no prejudice will be occasioned to the prosecution and it is in the interest of justice that the application be allowed.
4. The application has been filed before this court under certificate of urgency on 10th February 2026 at 14:37:22 Hours. That was barely one and half hours before the function of the burial of the applicant’s mother, at which he desired to attend, was to take place. It means that in any event, any orders granted herein will not be helpful to the applicant even if the application was to be considered favourably. In other words, the application has been overtaken by events.
5. This court is aware of the High Court’s persuasive decision in the case of Otieno v Ministry of Interior & Co-ordination of National Government (State Department for Correctional Services) & 2 others [2024] KEHC 1639 (KLR) where it was held with regard to persons detained in custody’s right to attend a funeral and burial that:
“A declaration be and is hereby issued that all sentenced prisoners and pretrial detainees held in custody have the right to be treated humanely which right includes permitting them to attend funerals and burials of their close family members or for any other exceptional deserving reason unless there are compelling reasons for declining granting of permission.”
6. In view of that decision, it would therefore not be out of context for this court to consider the application and grant the orders prayed for. However, in the same case, the High Court stated that:
“It is thus important that before any determination is made all the relevant facts must be laid bare. For instance, information on whether there has been an escape attempt or his conduct if he violent person or not, whether there are resources for facilitating prisoner’s request or if the prisoner’s family is able to cater for the expenses, how long the period of absence is anticipated (if more than a day, where would prisoner held) or if the funeral or burial might take place in the presence of persons that were hurt by the crime and the likely consequence of his presence there.”
7. The above factors to be taken into account are obviously not exhaustive because as the High Court observed, the application has to be considered on a case by case basis. There is no doubt that there are many practical complexities that would compound the implementation of the order. However, until the circumstances are brought to bear the right to humane treatment of prisoners by permitting them to attend funerals of their close relatives and their loved ones as was declared by the court will have to be accorded to persons deprived of liberty. Perhaps in this era of information technology, arrangements may be made by prison authorities and family members of the accused person in cases of high urgency such as the present one for virtual attendance of the funeral.
8. However, even if this court was minded to certify the application as urgent, I find that the application suffers from the following deficiencies:
a. The applicant has not provided information of how he learned of the loss of his mother. There is no document such as notification of death or burial permit or post mortem examination report attached to the affidavit to support the allegation.
b. The identity of the alleged deceased and proof of relationship to the applicant has not been made.
c. There is no report from the Prison authorities and the home environment of the applicant and the family members on the arrangements made to safely transport the applicant to the said funeral and back.
9. Consequently, I am unable to certify the application as urgent and fix it for inter partes hearing because that will not serve any useful purpose. Rather it will lead to more delay and clogging of the court’s diary with a matter that will ultimately not be in the interest of any of the parties named therein.
10. It is a hallowed principle of justice that courts do not grant orders in vain. Granting the said order will not serve any useful purpose. For that reason, the said application is declined.
It is so ordered.
Delivered, dated and signed on the Virtual Paltform, Microsoft Teams, this 10th day of February 2026.
ANDAYI W. F.
JUDGE
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE
a. The court be pleased to grant the accused/applicant temporary release from remand custody under police/prison escort to enable him attend the burial of his late mother scheduled for 10th February 2026 at Likoni Location at 4:00 p.m.
b. The said temporary release be strictly limited to the purpose of attending the burial and that the accused/applicant shall be returned to lawful custody immediately thereafter.
c. The Officer in Charge, Shimo la Tewa Prison, be directed to facilitate compliance with this Order.
2. The grounds in support of the application as laid out on the face thereof and expounded in the affidavit of the applicant Rsshid Salim Guya sworn on 10th February 2026 are that the applicant is charged with the offence of murder and is currently in remand custody at Shimo la Tewa Prison. I have perused his file and I note that the hearing is finalized and the matter is awaiting judgment on 5th March 2026.
3. The applicant deposes that his mother passed away on the evening of 9th February 2026 and the burial is scheduled for 10th February 2026 at Likoni Location at 4:00 p.m. Further that the applicant has been unable to secure bond due to financial incapacity. He therefore seeks attendance at his mother’s burial strictly under escort. He deposes that attendance at a parent's burial is a compelling humanitarian ground. Further that no prejudice will be occasioned to the prosecution and it is in the interest of justice that the application be allowed.
4. The application has been filed before this court under certificate of urgency on 10th February 2026 at 14:37:22 Hours. That was barely one and half hours before the function of the burial of the applicant’s mother, at which he desired to attend, was to take place. It means that in any event, any orders granted herein will not be helpful to the applicant even if the application was to be considered favourably. In other words, the application has been overtaken by events.
5. This court is aware of the High Court’s persuasive decision in the case of Otieno v Ministry of Interior & Co-ordination of National Government (State Department for Correctional Services) & 2 others [2024] KEHC 1639 (KLR) where it was held with regard to persons detained in custody’s right to attend a funeral and burial that:
“A declaration be and is hereby issued that all sentenced prisoners and pretrial detainees held in custody have the right to be treated humanely which right includes permitting them to attend funerals and burials of their close family members or for any other exceptional deserving reason unless there are compelling reasons for declining granting of permission.”
6. In view of that decision, it would therefore not be out of context for this court to consider the application and grant the orders prayed for. However, in the same case, the High Court stated that:
“It is thus important that before any determination is made all the relevant facts must be laid bare. For instance, information on whether there has been an escape attempt or his conduct if he violent person or not, whether there are resources for facilitating prisoner’s request or if the prisoner’s family is able to cater for the expenses, how long the period of absence is anticipated (if more than a day, where would prisoner held) or if the funeral or burial might take place in the presence of persons that were hurt by the crime and the likely consequence of his presence there.”
7. The above factors to be taken into account are obviously not exhaustive because as the High Court observed, the application has to be considered on a case by case basis. There is no doubt that there are many practical complexities that would compound the implementation of the order. However, until the circumstances are brought to bear the right to humane treatment of prisoners by permitting them to attend funerals of their close relatives and their loved ones as was declared by the court will have to be accorded to persons deprived of liberty. Perhaps in this era of information technology, arrangements may be made by prison authorities and family members of the accused person in cases of high urgency such as the present one for virtual attendance of the funeral.
8. However, even if this court was minded to certify the application as urgent, I find that the application suffers from the following deficiencies:
a. The applicant has not provided information of how he learned of the loss of his mother. There is no document such as notification of death or burial permit or post mortem examination report attached to the affidavit to support the allegation.
b. The identity of the alleged deceased and proof of relationship to the applicant has not been made.
c. There is no report from the Prison authorities and the home environment of the applicant and the family members on the arrangements made to safely transport the applicant to the said funeral and back.
9. Consequently, I am unable to certify the application as urgent and fix it for inter partes hearing because that will not serve any useful purpose. Rather it will lead to more delay and clogging of the court’s diary with a matter that will ultimately not be in the interest of any of the parties named therein.
10. It is a hallowed principle of justice that courts do not grant orders in vain. Granting the said order will not serve any useful purpose. For that reason, the said application is declined.
It is so ordered.
Delivered, dated and signed on the Virtual Paltform, Microsoft Teams, this 10th day of February 2026.
ANDAYI W. F.
JUDGE
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
ANDAYI W. F.
JUDGE