1. The Accused herein Robert Onyango Ayoo has been charged with an offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63, Laws of Kenya). The particulars of the Information are that on the 16th day of June 2026 at Oboch village in Rarieda Sub-County within Siaya County jointly with another not before Court, he murdered Brigit Otieno Olima.
2. The accused denied the charge and subsequently, the matter is now scheduled for trial. Learned counsel for the accused has made an oral application for the release of the accused on bond pending trial. Learned counsel for the prosecution on the other hand indication his opposition to the release of the accused on bond and indicated that it will file an affidavit to that effect.
3. The prosecution filed an affidavit sworn by the investigating officer No. 65761 S/SGT Japheth Ng'etich who averred inter alia; that the respondent was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The incident occurred on 16th June 2026 at Oboch village in Rarieda Sub-County, recorded at Ndori Police Station under OB 21/16/06/2026 at 1600 hours. The victim Brigit Otieno Olima (now deceased) was assaulted by the respondent acting jointly with another person who had hired the deceased's Tuk-Tuk to transport sawdust from Akala to Oboch village; that the deceased was severely assaulted by the respondent using a sharp machete, sustaining deep cuts to his face and right hand. He was initially rushed to Akala Sub-County Hospital for treatment and subsequently referred in serious condition to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) where he succumbed to his injuries on 17th June 2026; that prior to his death, the deceased (Brigit Otieno Olima) was a crucial witness before the court in a case involving the brutal murder of his sibling brother Erick Juma (deceased). He noted that the respondent lived together with the accused person in the same area in Gem Wagai Sub-County (attaching a copy of the Information marked as "JN1"); that while the Constitution permits arrested persons to be released on bail pending trial, that right is not absolute and may be limited under specific circumstances; that he formally registered his opposition to releasing the accused person on bail pending trial based on specific grounds; that the accused person faces a serious charge which carries a potential death sentence or long-term imprisonment upon conviction creating a strong incentive and high likelihood for the accused person to abscond; that the prosecution evidence against the accused person is overwhelming and directly ties him to the crime justifying pre-trial detention based on the following particulars: That witnesses stated that while receiving medical assistance, the deceased confirmed that the respondent and an accomplice still at large assaulted him using a sharp machete. That certain witnesses encountered the respondent in the act of assaulting the deceased during which the respondent threatened them with a sharp machete. That Immediately after the incident, the respondent’s wife Elizabeth Auma lodged a report of threats to kill against the deceased’s sibling Vincent Akumumat Siala Police Station under OB 12/16/06/2026 leading to a matter currently pending before Bondo Law Courts (attaching the OB extract marked "JN2"). That the respondent's brother, Kevin interfered with witnesses by threatening the deceased’s father, Jones Akumu Ogango an incident reported to Siala Police Station under OB 06/05/08/2026. That the post-mortem report confirmed that the fatal and gruesome injuries inflicted on the deceased were consistent with a premeditated intention to kill (attaching the post-mortem report marked "JN3") and that the respondent’s account is contradicted by documentary evidence and key prosecution witnesses and therefore releasing him on bail/bond creates a high risk that he will contact witnesses and instil real fear and anxiety.
He further averred interalia; that most key prosecution witnesses are neighbors of the respondent living within the same village. Releasing him would result in constant interaction raising a strong probability of testimony interference; that the gruesome nature of the murder caused widespread anger and grief which remains fresh in the minds of the family and close-knit community who are struggling to cope with the murder of two brothers within three months. Releasing the accused could spark revenge attacks; that the murder caused significant public outcry and given the public awareness of the evidence, pre-trial detention is necessary to safeguard the accused person's own safety; that releasing the accused person would disrupt public order and threaten community peace and security; that pre-trial release is at the court's discretion and urged the court to deny bail based on the stated grounds and he grounded the opposition on Article 49(1)(h) of the Constitution of Kenya which allows for the denial of bail where compelling reasons exist.
4. In response, Salim Odeny an Advocate practicing under M/S Salim Odeny & Co. Advocate swore a replying affidavit on 28th August 2026. In his affidavit, Counsel deponed to the following facts on behalf of the respondent; that he is an advocate having conduct of the matter on behalf of the respondent and is competent to swear the affidavit; that he was duly instructed by the respondent to swear and file the Replying Affidavit in response to the Prosecution’s affidavit; that regarding paragraphs 3 and 4 of the investigator's affidavit, he deponed (as informed by the respondent) that the respondent categorically denies assaulting Brigit Otieno Olima or having any role in his death, maintaining his innocence pending trial; that In response to paragraph 5, he deponed of his own knowledge as advocate that the respondent has no connection to the separate criminal case involving the late Erick Juma Akumu. He stated that the investigator's attempt to link the respondent to that case merely because they reside in the same sub-county is malicious and intended to prejudice the court; that regarding paragraphs 6 and 7, the prosecution failed to advance or prove any compelling reason to the required standard to justify denying bond; that in response to paragraph 8, he denied that the severity of the charge or sentence creates a flight risk. He stated that the respondent is a law-abiding citizen with deep community roots, a fixed place of residence and a young family dependent on him with no intention to abscond; that the respondent never attempted to flee after the death but instead when summoned to Yala Police Station, he voluntarily presented himself whereupon he was arrested and detained; that the prosecution tendered no evidence demonstrating that the respondent has ever absconded from any court's jurisdiction; that court records in Bondo Magistrate's Court Case No. MCCR/E375/2023 ( Republic v Elizabeth Onyango, Robert Ayoo & 1 Other ) show that when the respondent was released on cash bail, he never absconded; that the charge in the Bondo case was Grievous Harm which carries a life imprisonment sentence yet the respondent faithfully complied with all bond conditions; that the deceased was a witness in the Bondo case yet the respondent never interfered with him while out on bond making it illogical to claim he would interfere in Case No. SIAYA/HCCR/E009/2026 where he is not even an accused person; that In response to paragraphs 9(i) and 9(ii), he stated that allegations of the respondent threatening witnesses with a machete are unproven hearsay manufactured to justify unconstitutional detention and have not been tested via cross-examination; that In response to paragraph 9(iii), he deponed that the respondent has no control over his wife, Elizabeth Auma. Her report at Siala Police Station (OB 12/16/06/2026) was made out of genuine fear for her personal safety due to threats from Vincent Akumu and it would be unjust to deny the respondent bail based on his wife seeking police protection; that in response to paragraph 9(iv), he stated that the respondent is not his brother's keeper and did not authorize any alleged interference by his brother, Kevin. If Kevin committed an offence, the state should investigate him independently rather than holding the respondent vicariously liable; that regarding paragraphs 9(vi) and 10, he dismissed claims of potential witness interference with neighbours as generalized speculation. He stated that the respondent is ready to comply with strict non-contact orders or relocation terms to protect trial integrity; that In response to paragraphs 11, 12 and 13, he stated that public outrage or fear of community revenge do not legally constitute compelling reasons to deny bail as maintaining public order is the state's responsibility; that long-standing animosity exists between the two families revealing that the respondent’s father was previously murdered and his body dismembered with remaining body parts never recovered or buried to date; that due to this feud, he deponed that the deceased’s family routinely blames the respondent’s family whenever misfortune strikes even without basis as in the present case; that no one was ever charged with the murder of the respondent's father and efforts to seek justice have been frustrated. He linked the present arrest and the arrest of the respondent's nephew, Philip Ochieng (a key witness in the father's murder case charged in Yala MCCR/E122/2026) to these ongoing frustrations; that the prosecution failed to discharge its burden of proving compelling reasons to deny bail; that it is in the interest of justice for the respondent to be released on reasonable bail/bond terms and that the respondent undertakes to abide by all court-imposed conditions and attend all trial dates faithfully until the conclusion of the case.
5. The learned counsel for the defence filed written submissions while counsel for the prosecution presented oral submissions..
6. Learned Counsel for the defence submitted that the Prosecution's affidavit was sworn at Siaya but commissioned by an officer whose rubberstamp placed them in Madiany several kilometres away. Argument was made that this constituted a defect going to the heart of the affidavit rendering it defective. To support this position, Counsel cited several authorities: Obiero t/a C Obiero & Associates Advocates v Nyageh [2025] KEHC 8755 (KLR), where the court held that jurat discrepancies suggest the affidavit was executed outside the commissioner's presence creating an irregularity that cannot be cured by Article 159(2)(d) of the Constitution. Laikipia University College v Kibia [2023] KEHC 26705 (KLR), citing Section 5 of the Oaths and Statutory Declarations Act which strictly mandates stating the exact date and place of execution. Mary Gathoni & another v Frida Ariri Otolo & another [2020] eKLR, CMC Motors Group Limited v Bengeria arap Korir [2013] eKLR and In re Estate Dominicus Odhiambo (Deceased) [2020] KEHC 3582 (KLR) which held that such defects invalidate the veracity and probative value of affidavits and Regina Munyiva Ndunge v Kenya Commercial Bank Limited (2005) eKLR, emphasizing that striking out such an affidavit leaves the opposing application unsupported by evidence.
7. Counsel submitted that the Prosecution failed to demonstrate any compelling reasons to warrant the denial of bond.
8. Referring to Article 49(1)(h) of the Constitution, Counsel argued that release on bail is the rule while pre-trial detention is the exception. Counsel cited Republic v Joktan Malende and 3 Others (2009 ) to define compelling reasons as forceful and cogent grounds and Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR) to emphasize that the burden of proof rests entirely on the Prosecution.
9. Counsel systematically addressed each ground raised by the Prosecution: Counsel argued there was no evidence linking the Respondent to the separate murder case or demonstrating how he would benefit from the witness's death. Counsel submitted that relying on the potential severity of the sentence violated the presumption of innocence under Article 50(2)(a) of the Constitution. Counsel noted that following the Supreme Court ruling in Muruatetu & another v Republic [2017] KESC 2 (KLR), murder is bailable and potential sentences can no longer serve as a standalone ground to deny bail. Referring to State v Truphena Ndonga Aswani [2021] KEHC 8758 (KLR), Counsel noted that courts retain full discretion in sentencing. Additional precedent was cited from Cyril Kipruto Serem v Republic [2020] KEHC 2453 (KLR), Kirit Bhangwanda Kanabar v DPP [2018] KEHC 1610 (KLR ) , Waititu v Republic [2021] KESC 11 (KLR), Babayao v Republic [2019] KECA 93 (KLR) and Republic v Danfornd Kabage Mwangi [2016] KEHC 2516 (KLR).
10. Counsel submitted that witness statements do not constitute proven evidence until subjected to cross-examination during trial citing Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR). Counsel argued that witness interference must be substantiated with concrete proof rather than mere apprehension. Addressing allegations regarding the Respondent's family members, Counsel asserted that criminal responsibility is strictly individual citing Republic v Kamau [2024] KEHC 15046, Republic v William Kipkorir Chirchir & another [2018] KEHC 4144 (KLR), the Criminal Procedure Bench Book and Panju v Republic [1973] E.A. 282.
11. Counsel submitted that community hostility does not override constitutional rights and that the State cannot abdicate its duty under Article 29(c) and 238 of the Constitution to protect citizens citing Christopher Kyalo Kitila v Republic [2021] KEHC 4768 (KLR) and Patius Gichobi Njagi & 62 others v Republic [2013] KEHC 2533 (KLR).
12. Counsel reiterated that under Section 36A(6)(a) of the Criminal Procedure Code, the sole purpose of bond is to secure the court attendance of the accused person. Authorities cited to reinforce this included Republic v Ali & 2 others [2024] KEHC 14381 (KLR), Munai v Republic [2025] KEHC 19423 (KLR), Gwaro v ODPP & 3 others [2025] KEHC 19636 (KLR) and Andrew Young Otieno v Republic [2017] KEHC 8607 (KLR). Counsel noted that the Respondent has strong family and community ties in Siaya and holds no passport, mitigating any flight risk.
13. Concluding the submissions, Counsel cited Republic v Nuseiba Mohammed Haji Osman [2018] KECA 335 (KLR) and Republic v Danson Mgunya & another [2010] KEHC 4116 (KLR) urging the Court not to rely on speculation and to exercise its discretion to admit the Respondent to reasonable bail or bond terms.
14. Mr Soita, learned counsel for the prosecution relied heavily on the averments of the investigating officer in opposition to the release of accused on bond pending trial. It was his contention that the release of the accused will put the witnesses at risk as the situation on the ground is still volatile as captured by the Probation officer in his pre-bail report.
15. Mr Omore Omore, learned counsel watching brief for the family of the deceased submitted inter alia; that there is fear by the family regarding their safety; that there is genuine and reasonable apprehension; that the deceased herein was a main witness in a certain case; that the accused if released will engage his network of thugs to do his dirty work; that if the court is inclined to release the accused, then there should be strong/strict terms which secures the family of the deceased.
16. The County Probation officer vide his pre-bail report dated 3/9/2026 noted that the community members have not expressed hostility towards the accused and are receptive to his release. It was the view of the probation officer that the accused demonstrates suitability for admission to bond but however due to the animosity between the family of accused and deceased, the terms of bond must be stringent to ensure strict compliance and to safeguard the integrity of the ongoing proceedings.
17. I have given due consideration to the affidavits, the Probation Officer’s Assessment report, written submissions and the oral submissions. The issue for determination is whether the accused herein should be released on bond pending trial.
18. The Defence argued in its submissions that the Prosecution's affidavit was sworn at Siaya but commissioned by a magistrate/commissioner for oaths based at Madiany Law Courts. Citing Section 5 of the Oaths and Statutory Declarations Act (Cap 15, Laws of Kenya) and authorities such as Obiero t/a C Obiero & Associates Advocates v Nyageh [2025] KEHC 8755 (KLR ) and In re Estate Dominicus Odhiambo (Deceased) [2020] KEHC 3582 (KLR), Counsel urged the Court to strike out the affidavit.
19. While Section 5 requires that a commissioner for oaths state truly the place and date where an oath is taken, the Court notes that in criminal proceedings involving constitutional rights under Article 49(1)(h), strict technicalities ought not to override substantive justice pursuant to Article 159(2)(d) of the Constitution. More importantly even if the affidavit were struck out, the Court maintains an inherent duty under the Judiciary Bail and Bond Policy Guidelines to independently assess the suitability of bail using all materials on record including the Pre-Bail Probation Assessment Report. The Court will therefore consider the substance of the objections in the interest of justice
20. Article 49(1)(h) of the Constitution stipulates thus: “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.” This simply connotes that granting of bail or bond is not automatic. The same may be denied where there’s compelling reasons to do so.
21. Further, the National Council for Administration of Justice (NCAJ) as established under section 34 of the Judicial Service Act, No. 1 of 2011 was tasked by the Honorable Chief Justice to formulate Policy Guidelines on Bail and Bond. Clause 3 of the Bail and Bond Policy Guidelines provides for the General Principles to guide judicial officers in the decision making of whether or not to grant bail/bond.
22. The aforementioned Clause 3.1(e) Provides that bail determination must balance the rights of the accused persons and the interest of justice. It goes further to extrapolate as follows: On the one hand, police officers and judicial officers should endeavor to preserve the liberty of an accused person who is presumed to be innocent and should be allowed to keep the fabric of his or her life intact by for example maintaining employment and family and community ties. Preserving the liberty of an accused person permits him or her to take an active part in the planning of his or her defense. On the other hand, the State has a duty to prosecute those who commit crimes which may entail qualifying the individual right to liberty. The State has a duty to ensure public safety between the time of arrest and trial of accused persons and a duty to protect the integrity of the criminal justice system.
23. This means that where there is convincing evidence that an accused person may undermine the integrity of the criminal justice system by for example intimidating witnesses or interfering with the evidence, then a need arises to either deny such a person bail or bond or set stringent bail or bond terms.
24. The interests of justice therefore demand the protection of the investigation and prosecution process against probable hindrance by accused persons. It is therefore important for police officers and judicial officers to appreciate that the public have an interest in the effective prosecution of offences.
25. In appreciating the need to balance the rights of accused persons with the interests of justice, the Constitution states that an accused person can only be denied bail or bond where the court establishes that there are compelling reasons not to be released.
26. That is while the Constitution stipulates that every accused person is presumptively entitled to bail or bond, it permits the denial of bail or bond where the prosecution presents convincing evidence to justify such denial.
27. Apart from Article 49(1) (e) of the constitution, section 123 (A) of the Criminal Procedure Code sets out the exceptions to the right to bail or bond and that the court shall have regard to all relevant circumstances inter alia; nature and seriousness of the offence; character, antecedents, associations and community ties of the accused; accused’s record in respect of the fulfilment of obligations under previous grant of bail; strength of the evidence of his having committed the offence etc.
28. The reasoning behind bail or bond is based on the constitutional imperative under Article 50 (20 (a) of the constitution that the accused is presumed innocent until the contrary is proved. The primary consideration is always the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. See R v Danson Mgunya & Another [2010] eKLR. A murder suspect has a constitutional right to be released on bail/bond unless there are compelling reasons to deny the same. The compelling reasons must relate to exceptional circumstances which should be on a case by case basis. In the case of R v Pascal Ochieng Lawrence [2014] eKLR the court laid down the factors to be considered in an application for bail pending trial when it held as follows:
“It is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the state. The court in exercising its discretion as to whether or not to grant bond is however to be guided by the following parameters:
-The seriousness of the offence although this carried greater weight under the old constitutional dispensation.
-Weight of the evidence so far adduced if the case is partly heard.
-Possibility of the accused interfering with witnesses.
-Safety and protection of the accused once he is released on bail/bond.
-Whether the accused will turn up for trial.
-Whether the release of accused will jeopardize the security of the community.
29. The argument that the severity of the charge creates a flight risk has been substantially weakened by the jurisprudence following the Muruatetu decision. While murder remains a serious offence, the mandatory death sentence was declared unconstitutional introducing discretion in sentencing. The gravity of a charge alone cannot be a standalone reason to deny bail. As held in Cyril Kipruto Serem v Republic [2020] KEHC 2453 (KLR), "Terms of bond are not meant to punish the accused for any perceived guilt for the charges leveled against him." The Respondent has demonstrated strong community ties and has no known residence outside the locality, significantly mitigating the risk of absconding. His clean record of complying with bail terms in a previous case is a strong indicator of his reliability
30. At this stage, the Court cannot and should not make conclusive findings on the weight of the evidence as it has not been tested through cross-examination. The Prosecution's assertion that the evidence is "overwhelming" is an invitation for the Court to prejudge the case which is not permissible. The Court of Appeal in Michael Juma Oyamo emphasized that evidence in witness statements "bears very little weight" until subjected to the trial process. This ground is speculative and is therefore rejected.
31. The Prosecution's claim that the accused will interfere with witnesses is supported by allegations against his wife and brother. The Court is alive to the risk of witness interference, which is a legitimate compelling reason where supported by evidence. However, as the court held in Republic v Sarah Wairimu Kamotho [2019] eKLR, "intimidation, interference and threatening of witnesses are serious matters... where evidence of such intimidation, interference or threats is provided to the trial court... in the absence of the evidence to support the same, these remain just mere suspicions and fears harboured by the prosecution"
The actions of Elizabeth Auma and Kevin even if true, do not directly implicate the Respondent in witness interference in this specific case. Criminal liability is individual and not vicarious. In Panju v R (1973) E.A. 282 the High Court held that where an allegation of interference with witnesses is used as a ground of opposing release on bail, the prosecution must produce evidence. This ground is not supported by direct verifiable evidence linking the Respondent to acts of obstruction of justice. The Court finds no compelling reason on this ground.
32. The Prosecution's submission that the accused’s release might cause public outrage and revenge is not a valid compelling reason. It is the State's constitutional duty under Article 29(c) to ensure the security and protection of all persons including the accused. The State cannot run away from this duty. In any event the police motto of ‘’Utumishi Kwa Wote ‘’ must be real and to assure the public of their security at all times. The potential for community hostility, while a real concern, must be addressed through the State's law enforcement mechanisms, not by indefinite pre-trial detention. The Court can impose stringent conditions to mitigate any risk.
33. The mere fact that the deceased was a witness in another case and that the accused lives in the same area as the witnesses in that case is in the Court's view a tenuous link at best. No evidence has been presented showing a connection between the accused and the other case. This ground is speculative and does not constitute a "compelling reason."
34. Having balanced the constitutional right of the Accused to liberty and the presumption of innocence under Articles 49(1)(h) and 50(2)(a) against the interests of justice, witness protection and public order, this Court finds that the Prosecution has not established absolute compelling reasons to deny bail entirely. However, given the heightened familial animosity and risk of witness interaction in the immediate locality, stringent non-contact and relocation conditions are imperative.
35. Accordingly, the Accused herein is hereby admitted to bail/bond on the following strict conditions:
1. The Accused is granted a bond of Ksh 500,000/= with two sureties of similar amounts.
2. The Accused, upon release shall not, directly or indirectly, contact, intimidate, threaten or communicate with any prosecution witnesses or members of the deceased’s immediate family and that any breach of this condition will result in immediate cancellation of bail.
3. The Accused shall faithfully attend all trial dates and proceedings without fail until final determination of the case or until further orders of the court.
It is so ordered.
Dated and delivered at Siaya, this 15 th day of September 2026
D.KEMEI
JUDGE
In the presence of:
Robert Onyango Ayoo………………Accused
Salim Odeny……………………………….for Accused
Soita………………………………….for Prosecution
Maurine………………………………Court Assistant
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2. The accused denied the charge and subsequently, the matter is now scheduled for trial. Learned counsel for the accused has made an oral application for the release of the accused on bond pending trial. Learned counsel for the prosecution on the other hand indication his opposition to the release of the accused on bond and indicated that it will file an affidavit to that effect.
3. The prosecution filed an affidavit sworn by the investigating officer No. 65761 S/SGT Japheth Ng'etich who averred inter alia; that the respondent was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The incident occurred on 16th June 2026 at Oboch village in Rarieda Sub-County, recorded at Ndori Police Station under OB 21/16/06/2026 at 1600 hours. The victim Brigit Otieno Olima (now deceased) was assaulted by the respondent acting jointly with another person who had hired the deceased's Tuk-Tuk to transport sawdust from Akala to Oboch village; that the deceased was severely assaulted by the respondent using a sharp machete, sustaining deep cuts to his face and right hand. He was initially rushed to Akala Sub-County Hospital for treatment and subsequently referred in serious condition to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) where he succumbed to his injuries on 17th June 2026; that prior to his death, the deceased (Brigit Otieno Olima) was a crucial witness before the court in a case involving the brutal murder of his sibling brother Erick Juma (deceased). He noted that the respondent lived together with the accused person in the same area in Gem Wagai Sub-County (attaching a copy of the Information marked as "JN1"); that while the Constitution permits arrested persons to be released on bail pending trial, that right is not absolute and may be limited under specific circumstances; that he formally registered his opposition to releasing the accused person on bail pending trial based on specific grounds; that the accused person faces a serious charge which carries a potential death sentence or long-term imprisonment upon conviction creating a strong incentive and high likelihood for the accused person to abscond; that the prosecution evidence against the accused person is overwhelming and directly ties him to the crime justifying pre-trial detention based on the following particulars: That witnesses stated that while receiving medical assistance, the deceased confirmed that the respondent and an accomplice still at large assaulted him using a sharp machete. That certain witnesses encountered the respondent in the act of assaulting the deceased during which the respondent threatened them with a sharp machete. That Immediately after the incident, the respondent’s wife Elizabeth Auma lodged a report of threats to kill against the deceased’s sibling Vincent Akumumat Siala Police Station under OB 12/16/06/2026 leading to a matter currently pending before Bondo Law Courts (attaching the OB extract marked "JN2"). That the respondent's brother, Kevin interfered with witnesses by threatening the deceased’s father, Jones Akumu Ogango an incident reported to Siala Police Station under OB 06/05/08/2026. That the post-mortem report confirmed that the fatal and gruesome injuries inflicted on the deceased were consistent with a premeditated intention to kill (attaching the post-mortem report marked "JN3") and that the respondent’s account is contradicted by documentary evidence and key prosecution witnesses and therefore releasing him on bail/bond creates a high risk that he will contact witnesses and instil real fear and anxiety.
He further averred interalia; that most key prosecution witnesses are neighbors of the respondent living within the same village. Releasing him would result in constant interaction raising a strong probability of testimony interference; that the gruesome nature of the murder caused widespread anger and grief which remains fresh in the minds of the family and close-knit community who are struggling to cope with the murder of two brothers within three months. Releasing the accused could spark revenge attacks; that the murder caused significant public outcry and given the public awareness of the evidence, pre-trial detention is necessary to safeguard the accused person's own safety; that releasing the accused person would disrupt public order and threaten community peace and security; that pre-trial release is at the court's discretion and urged the court to deny bail based on the stated grounds and he grounded the opposition on Article 49(1)(h) of the Constitution of Kenya which allows for the denial of bail where compelling reasons exist.
4. In response, Salim Odeny an Advocate practicing under M/S Salim Odeny & Co. Advocate swore a replying affidavit on 28th August 2026. In his affidavit, Counsel deponed to the following facts on behalf of the respondent; that he is an advocate having conduct of the matter on behalf of the respondent and is competent to swear the affidavit; that he was duly instructed by the respondent to swear and file the Replying Affidavit in response to the Prosecution’s affidavit; that regarding paragraphs 3 and 4 of the investigator's affidavit, he deponed (as informed by the respondent) that the respondent categorically denies assaulting Brigit Otieno Olima or having any role in his death, maintaining his innocence pending trial; that In response to paragraph 5, he deponed of his own knowledge as advocate that the respondent has no connection to the separate criminal case involving the late Erick Juma Akumu. He stated that the investigator's attempt to link the respondent to that case merely because they reside in the same sub-county is malicious and intended to prejudice the court; that regarding paragraphs 6 and 7, the prosecution failed to advance or prove any compelling reason to the required standard to justify denying bond; that in response to paragraph 8, he denied that the severity of the charge or sentence creates a flight risk. He stated that the respondent is a law-abiding citizen with deep community roots, a fixed place of residence and a young family dependent on him with no intention to abscond; that the respondent never attempted to flee after the death but instead when summoned to Yala Police Station, he voluntarily presented himself whereupon he was arrested and detained; that the prosecution tendered no evidence demonstrating that the respondent has ever absconded from any court's jurisdiction; that court records in Bondo Magistrate's Court Case No. MCCR/E375/2023 ( Republic v Elizabeth Onyango, Robert Ayoo & 1 Other ) show that when the respondent was released on cash bail, he never absconded; that the charge in the Bondo case was Grievous Harm which carries a life imprisonment sentence yet the respondent faithfully complied with all bond conditions; that the deceased was a witness in the Bondo case yet the respondent never interfered with him while out on bond making it illogical to claim he would interfere in Case No. SIAYA/HCCR/E009/2026 where he is not even an accused person; that In response to paragraphs 9(i) and 9(ii), he stated that allegations of the respondent threatening witnesses with a machete are unproven hearsay manufactured to justify unconstitutional detention and have not been tested via cross-examination; that In response to paragraph 9(iii), he deponed that the respondent has no control over his wife, Elizabeth Auma. Her report at Siala Police Station (OB 12/16/06/2026) was made out of genuine fear for her personal safety due to threats from Vincent Akumu and it would be unjust to deny the respondent bail based on his wife seeking police protection; that in response to paragraph 9(iv), he stated that the respondent is not his brother's keeper and did not authorize any alleged interference by his brother, Kevin. If Kevin committed an offence, the state should investigate him independently rather than holding the respondent vicariously liable; that regarding paragraphs 9(vi) and 10, he dismissed claims of potential witness interference with neighbours as generalized speculation. He stated that the respondent is ready to comply with strict non-contact orders or relocation terms to protect trial integrity; that In response to paragraphs 11, 12 and 13, he stated that public outrage or fear of community revenge do not legally constitute compelling reasons to deny bail as maintaining public order is the state's responsibility; that long-standing animosity exists between the two families revealing that the respondent’s father was previously murdered and his body dismembered with remaining body parts never recovered or buried to date; that due to this feud, he deponed that the deceased’s family routinely blames the respondent’s family whenever misfortune strikes even without basis as in the present case; that no one was ever charged with the murder of the respondent's father and efforts to seek justice have been frustrated. He linked the present arrest and the arrest of the respondent's nephew, Philip Ochieng (a key witness in the father's murder case charged in Yala MCCR/E122/2026) to these ongoing frustrations; that the prosecution failed to discharge its burden of proving compelling reasons to deny bail; that it is in the interest of justice for the respondent to be released on reasonable bail/bond terms and that the respondent undertakes to abide by all court-imposed conditions and attend all trial dates faithfully until the conclusion of the case.
5. The learned counsel for the defence filed written submissions while counsel for the prosecution presented oral submissions..
6. Learned Counsel for the defence submitted that the Prosecution's affidavit was sworn at Siaya but commissioned by an officer whose rubberstamp placed them in Madiany several kilometres away. Argument was made that this constituted a defect going to the heart of the affidavit rendering it defective. To support this position, Counsel cited several authorities: Obiero t/a C Obiero & Associates Advocates v Nyageh [2025] KEHC 8755 (KLR), where the court held that jurat discrepancies suggest the affidavit was executed outside the commissioner's presence creating an irregularity that cannot be cured by Article 159(2)(d) of the Constitution. Laikipia University College v Kibia [2023] KEHC 26705 (KLR), citing Section 5 of the Oaths and Statutory Declarations Act which strictly mandates stating the exact date and place of execution. Mary Gathoni & another v Frida Ariri Otolo & another [2020] eKLR, CMC Motors Group Limited v Bengeria arap Korir [2013] eKLR and In re Estate Dominicus Odhiambo (Deceased) [2020] KEHC 3582 (KLR) which held that such defects invalidate the veracity and probative value of affidavits and Regina Munyiva Ndunge v Kenya Commercial Bank Limited (2005) eKLR, emphasizing that striking out such an affidavit leaves the opposing application unsupported by evidence.
7. Counsel submitted that the Prosecution failed to demonstrate any compelling reasons to warrant the denial of bond.
8. Referring to Article 49(1)(h) of the Constitution, Counsel argued that release on bail is the rule while pre-trial detention is the exception. Counsel cited Republic v Joktan Malende and 3 Others (2009 ) to define compelling reasons as forceful and cogent grounds and Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR) to emphasize that the burden of proof rests entirely on the Prosecution.
9. Counsel systematically addressed each ground raised by the Prosecution: Counsel argued there was no evidence linking the Respondent to the separate murder case or demonstrating how he would benefit from the witness's death. Counsel submitted that relying on the potential severity of the sentence violated the presumption of innocence under Article 50(2)(a) of the Constitution. Counsel noted that following the Supreme Court ruling in Muruatetu & another v Republic [2017] KESC 2 (KLR), murder is bailable and potential sentences can no longer serve as a standalone ground to deny bail. Referring to State v Truphena Ndonga Aswani [2021] KEHC 8758 (KLR), Counsel noted that courts retain full discretion in sentencing. Additional precedent was cited from Cyril Kipruto Serem v Republic [2020] KEHC 2453 (KLR), Kirit Bhangwanda Kanabar v DPP [2018] KEHC 1610 (KLR ) , Waititu v Republic [2021] KESC 11 (KLR), Babayao v Republic [2019] KECA 93 (KLR) and Republic v Danfornd Kabage Mwangi [2016] KEHC 2516 (KLR).
10. Counsel submitted that witness statements do not constitute proven evidence until subjected to cross-examination during trial citing Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR). Counsel argued that witness interference must be substantiated with concrete proof rather than mere apprehension. Addressing allegations regarding the Respondent's family members, Counsel asserted that criminal responsibility is strictly individual citing Republic v Kamau [2024] KEHC 15046, Republic v William Kipkorir Chirchir & another [2018] KEHC 4144 (KLR), the Criminal Procedure Bench Book and Panju v Republic [1973] E.A. 282.
11. Counsel submitted that community hostility does not override constitutional rights and that the State cannot abdicate its duty under Article 29(c) and 238 of the Constitution to protect citizens citing Christopher Kyalo Kitila v Republic [2021] KEHC 4768 (KLR) and Patius Gichobi Njagi & 62 others v Republic [2013] KEHC 2533 (KLR).
12. Counsel reiterated that under Section 36A(6)(a) of the Criminal Procedure Code, the sole purpose of bond is to secure the court attendance of the accused person. Authorities cited to reinforce this included Republic v Ali & 2 others [2024] KEHC 14381 (KLR), Munai v Republic [2025] KEHC 19423 (KLR), Gwaro v ODPP & 3 others [2025] KEHC 19636 (KLR) and Andrew Young Otieno v Republic [2017] KEHC 8607 (KLR). Counsel noted that the Respondent has strong family and community ties in Siaya and holds no passport, mitigating any flight risk.
13. Concluding the submissions, Counsel cited Republic v Nuseiba Mohammed Haji Osman [2018] KECA 335 (KLR) and Republic v Danson Mgunya & another [2010] KEHC 4116 (KLR) urging the Court not to rely on speculation and to exercise its discretion to admit the Respondent to reasonable bail or bond terms.
14. Mr Soita, learned counsel for the prosecution relied heavily on the averments of the investigating officer in opposition to the release of accused on bond pending trial. It was his contention that the release of the accused will put the witnesses at risk as the situation on the ground is still volatile as captured by the Probation officer in his pre-bail report.
15. Mr Omore Omore, learned counsel watching brief for the family of the deceased submitted inter alia; that there is fear by the family regarding their safety; that there is genuine and reasonable apprehension; that the deceased herein was a main witness in a certain case; that the accused if released will engage his network of thugs to do his dirty work; that if the court is inclined to release the accused, then there should be strong/strict terms which secures the family of the deceased.
16. The County Probation officer vide his pre-bail report dated 3/9/2026 noted that the community members have not expressed hostility towards the accused and are receptive to his release. It was the view of the probation officer that the accused demonstrates suitability for admission to bond but however due to the animosity between the family of accused and deceased, the terms of bond must be stringent to ensure strict compliance and to safeguard the integrity of the ongoing proceedings.
17. I have given due consideration to the affidavits, the Probation Officer’s Assessment report, written submissions and the oral submissions. The issue for determination is whether the accused herein should be released on bond pending trial.
18. The Defence argued in its submissions that the Prosecution's affidavit was sworn at Siaya but commissioned by a magistrate/commissioner for oaths based at Madiany Law Courts. Citing Section 5 of the Oaths and Statutory Declarations Act (Cap 15, Laws of Kenya) and authorities such as Obiero t/a C Obiero & Associates Advocates v Nyageh [2025] KEHC 8755 (KLR ) and In re Estate Dominicus Odhiambo (Deceased) [2020] KEHC 3582 (KLR), Counsel urged the Court to strike out the affidavit.
19. While Section 5 requires that a commissioner for oaths state truly the place and date where an oath is taken, the Court notes that in criminal proceedings involving constitutional rights under Article 49(1)(h), strict technicalities ought not to override substantive justice pursuant to Article 159(2)(d) of the Constitution. More importantly even if the affidavit were struck out, the Court maintains an inherent duty under the Judiciary Bail and Bond Policy Guidelines to independently assess the suitability of bail using all materials on record including the Pre-Bail Probation Assessment Report. The Court will therefore consider the substance of the objections in the interest of justice
20. Article 49(1)(h) of the Constitution stipulates thus: “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.” This simply connotes that granting of bail or bond is not automatic. The same may be denied where there’s compelling reasons to do so.
21. Further, the National Council for Administration of Justice (NCAJ) as established under section 34 of the Judicial Service Act, No. 1 of 2011 was tasked by the Honorable Chief Justice to formulate Policy Guidelines on Bail and Bond. Clause 3 of the Bail and Bond Policy Guidelines provides for the General Principles to guide judicial officers in the decision making of whether or not to grant bail/bond.
22. The aforementioned Clause 3.1(e) Provides that bail determination must balance the rights of the accused persons and the interest of justice. It goes further to extrapolate as follows: On the one hand, police officers and judicial officers should endeavor to preserve the liberty of an accused person who is presumed to be innocent and should be allowed to keep the fabric of his or her life intact by for example maintaining employment and family and community ties. Preserving the liberty of an accused person permits him or her to take an active part in the planning of his or her defense. On the other hand, the State has a duty to prosecute those who commit crimes which may entail qualifying the individual right to liberty. The State has a duty to ensure public safety between the time of arrest and trial of accused persons and a duty to protect the integrity of the criminal justice system.
23. This means that where there is convincing evidence that an accused person may undermine the integrity of the criminal justice system by for example intimidating witnesses or interfering with the evidence, then a need arises to either deny such a person bail or bond or set stringent bail or bond terms.
24. The interests of justice therefore demand the protection of the investigation and prosecution process against probable hindrance by accused persons. It is therefore important for police officers and judicial officers to appreciate that the public have an interest in the effective prosecution of offences.
25. In appreciating the need to balance the rights of accused persons with the interests of justice, the Constitution states that an accused person can only be denied bail or bond where the court establishes that there are compelling reasons not to be released.
26. That is while the Constitution stipulates that every accused person is presumptively entitled to bail or bond, it permits the denial of bail or bond where the prosecution presents convincing evidence to justify such denial.
27. Apart from Article 49(1) (e) of the constitution, section 123 (A) of the Criminal Procedure Code sets out the exceptions to the right to bail or bond and that the court shall have regard to all relevant circumstances inter alia; nature and seriousness of the offence; character, antecedents, associations and community ties of the accused; accused’s record in respect of the fulfilment of obligations under previous grant of bail; strength of the evidence of his having committed the offence etc.
28. The reasoning behind bail or bond is based on the constitutional imperative under Article 50 (20 (a) of the constitution that the accused is presumed innocent until the contrary is proved. The primary consideration is always the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. See R v Danson Mgunya & Another [2010] eKLR. A murder suspect has a constitutional right to be released on bail/bond unless there are compelling reasons to deny the same. The compelling reasons must relate to exceptional circumstances which should be on a case by case basis. In the case of R v Pascal Ochieng Lawrence [2014] eKLR the court laid down the factors to be considered in an application for bail pending trial when it held as follows:
“It is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the state. The court in exercising its discretion as to whether or not to grant bond is however to be guided by the following parameters:
-The seriousness of the offence although this carried greater weight under the old constitutional dispensation.
-Weight of the evidence so far adduced if the case is partly heard.
-Possibility of the accused interfering with witnesses.
-Safety and protection of the accused once he is released on bail/bond.
-Whether the accused will turn up for trial.
-Whether the release of accused will jeopardize the security of the community.
29. The argument that the severity of the charge creates a flight risk has been substantially weakened by the jurisprudence following the Muruatetu decision. While murder remains a serious offence, the mandatory death sentence was declared unconstitutional introducing discretion in sentencing. The gravity of a charge alone cannot be a standalone reason to deny bail. As held in Cyril Kipruto Serem v Republic [2020] KEHC 2453 (KLR), "Terms of bond are not meant to punish the accused for any perceived guilt for the charges leveled against him." The Respondent has demonstrated strong community ties and has no known residence outside the locality, significantly mitigating the risk of absconding. His clean record of complying with bail terms in a previous case is a strong indicator of his reliability
30. At this stage, the Court cannot and should not make conclusive findings on the weight of the evidence as it has not been tested through cross-examination. The Prosecution's assertion that the evidence is "overwhelming" is an invitation for the Court to prejudge the case which is not permissible. The Court of Appeal in Michael Juma Oyamo emphasized that evidence in witness statements "bears very little weight" until subjected to the trial process. This ground is speculative and is therefore rejected.
31. The Prosecution's claim that the accused will interfere with witnesses is supported by allegations against his wife and brother. The Court is alive to the risk of witness interference, which is a legitimate compelling reason where supported by evidence. However, as the court held in Republic v Sarah Wairimu Kamotho [2019] eKLR, "intimidation, interference and threatening of witnesses are serious matters... where evidence of such intimidation, interference or threats is provided to the trial court... in the absence of the evidence to support the same, these remain just mere suspicions and fears harboured by the prosecution"
The actions of Elizabeth Auma and Kevin even if true, do not directly implicate the Respondent in witness interference in this specific case. Criminal liability is individual and not vicarious. In Panju v R (1973) E.A. 282 the High Court held that where an allegation of interference with witnesses is used as a ground of opposing release on bail, the prosecution must produce evidence. This ground is not supported by direct verifiable evidence linking the Respondent to acts of obstruction of justice. The Court finds no compelling reason on this ground.
32. The Prosecution's submission that the accused’s release might cause public outrage and revenge is not a valid compelling reason. It is the State's constitutional duty under Article 29(c) to ensure the security and protection of all persons including the accused. The State cannot run away from this duty. In any event the police motto of ‘’Utumishi Kwa Wote ‘’ must be real and to assure the public of their security at all times. The potential for community hostility, while a real concern, must be addressed through the State's law enforcement mechanisms, not by indefinite pre-trial detention. The Court can impose stringent conditions to mitigate any risk.
33. The mere fact that the deceased was a witness in another case and that the accused lives in the same area as the witnesses in that case is in the Court's view a tenuous link at best. No evidence has been presented showing a connection between the accused and the other case. This ground is speculative and does not constitute a "compelling reason."
34. Having balanced the constitutional right of the Accused to liberty and the presumption of innocence under Articles 49(1)(h) and 50(2)(a) against the interests of justice, witness protection and public order, this Court finds that the Prosecution has not established absolute compelling reasons to deny bail entirely. However, given the heightened familial animosity and risk of witness interaction in the immediate locality, stringent non-contact and relocation conditions are imperative.
35. Accordingly, the Accused herein is hereby admitted to bail/bond on the following strict conditions:
1. The Accused is granted a bond of Ksh 500,000/= with two sureties of similar amounts.
2. The Accused, upon release shall not, directly or indirectly, contact, intimidate, threaten or communicate with any prosecution witnesses or members of the deceased’s immediate family and that any breach of this condition will result in immediate cancellation of bail.
3. The Accused shall faithfully attend all trial dates and proceedings without fail until final determination of the case or until further orders of the court.
It is so ordered.
Dated and delivered at Siaya, this 15 th day of September 2026
D.KEMEI
JUDGE
In the presence of:
Robert Onyango Ayoo………………Accused
Salim Odeny……………………………….for Accused
Soita………………………………….for Prosecution
Maurine………………………………Court Assistant
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