1. TOM ODHIAMBO OUMA (‘the accused’) has been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63, Laws of Kenya.
2. According to the information laid before this Court, it has been alleged that on the 15/2/2026 at Kasule Sub-location, Kolwa Location in Kisumu East Sub-County within Kisumu County, the accused murdered RAPHAEL OKWERA OTIENO.
3. The accused pleaded not guilty and his counsel on record Mr. Opiyo applied that the accused be released on reasonable bond terms. That the accused has the right to be presumed innocent under Article 50 (2) (b) of the Constitution of Kenya. That he has the right to bail under Article 49 (1) (h) of the Constitution. That he was not a flight risk. The case of Watero vs Republic (1991) KLR 203 was cited in support of that proposition. Counsel urged that the accused be admitted to bond.
4. The application was strenuously opposed by Ms. Kagali for the State. She submitted that according to the Pre-bail report dated 26/5/2026, the emotions in the community are still high. That it would be dangerous to the accused’s life if released on bond. That the bond should be held in abeyance.
5. I have considered the rival submissions. The right to bail is a constitutional right that can only be denied if there exists special circumstances. I agree with Mr. Ogola that an accused is presumed innocent at all times until he is tried and convicted by a competent court. During that period, his right to liberty must be upheld unless there be compelling reasons. See Republic vs Joktan Mayende & 3 Others (2012) eKLR.
6. Some of these special circumstances or compelling reasons may include where an accused is a flight risk, the likelihood of interfering with witnesses or likelihood of re-effecting where there is threat to the safety or life of an accused.
7. In this regard, in considering such an application, it is for the Court to consider the relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify refusal to release an accused on bond.
8. In the present case, the Pre-bail report allege that the community is against the accused being released on bond. They allege that he is a flight risk, he belongs to a gang involved in criminal activities within the community, that his life will be in danger if released as the emotions are still high.
9. While this Court acknowledges that the accused has the right to bail/bond, it is also alive to the fact that the accused need be alive and present at the trial for his case. To the extent that the community is baying for his blood, that is an exceptional circumstance. No evidence of other residence from where the offence occurred. The offence is alleged to have been committed only on 15/2/2026, barely 4 months ago.
10. In the circumstances, I decline to grant the bond. Let the accused renew the application after some time during the trial.
It is so ordered.
2. According to the information laid before this Court, it has been alleged that on the 15/2/2026 at Kasule Sub-location, Kolwa Location in Kisumu East Sub-County within Kisumu County, the accused murdered RAPHAEL OKWERA OTIENO.
3. The accused pleaded not guilty and his counsel on record Mr. Opiyo applied that the accused be released on reasonable bond terms. That the accused has the right to be presumed innocent under Article 50 (2) (b) of the Constitution of Kenya. That he has the right to bail under Article 49 (1) (h) of the Constitution. That he was not a flight risk. The case of Watero vs Republic (1991) KLR 203 was cited in support of that proposition. Counsel urged that the accused be admitted to bond.
4. The application was strenuously opposed by Ms. Kagali for the State. She submitted that according to the Pre-bail report dated 26/5/2026, the emotions in the community are still high. That it would be dangerous to the accused’s life if released on bond. That the bond should be held in abeyance.
5. I have considered the rival submissions. The right to bail is a constitutional right that can only be denied if there exists special circumstances. I agree with Mr. Ogola that an accused is presumed innocent at all times until he is tried and convicted by a competent court. During that period, his right to liberty must be upheld unless there be compelling reasons. See Republic vs Joktan Mayende & 3 Others (2012) eKLR.
6. Some of these special circumstances or compelling reasons may include where an accused is a flight risk, the likelihood of interfering with witnesses or likelihood of re-effecting where there is threat to the safety or life of an accused.
7. In this regard, in considering such an application, it is for the Court to consider the relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify refusal to release an accused on bond.
8. In the present case, the Pre-bail report allege that the community is against the accused being released on bond. They allege that he is a flight risk, he belongs to a gang involved in criminal activities within the community, that his life will be in danger if released as the emotions are still high.
9. While this Court acknowledges that the accused has the right to bail/bond, it is also alive to the fact that the accused need be alive and present at the trial for his case. To the extent that the community is baying for his blood, that is an exceptional circumstance. No evidence of other residence from where the offence occurred. The offence is alleged to have been committed only on 15/2/2026, barely 4 months ago.
10. In the circumstances, I decline to grant the bond. Let the accused renew the application after some time during the trial.
It is so ordered.