1. This is a ruling on whether the accused person should be released on bond pending trial.
2. The state is opposed to grant of bail and bond, the prosecution reiterated that should the accused be granted bail and bond terms, the chances are high of him breaching since he is a flight risk, he states that the offence was committed on 2.10.24 since then he vanished from Masimba town and was later found on 13.2.25 in Narok and that his security is at risk.
3. The pre-bail report filed herein recommends bond to accused pending hearing on condition that he finds an alternative place of abode and the community and his family are against his return home as evidence by torching of the house of his mother and other houses in the compounds .
4. The accused filed an affidavit stating that he knows the hostility back at home and he has therefore opted to seek an alternative place of aboard that is his sisters place in Narok and he promises to abide by the rules if granted bond terms.
5. That it is trite law that granting bail entails the striking of a balance of proportionality in considering the rights of the applicant who is presumed innocent on the one hand and the public interest on the other. That on proportionality of bail and bond terms, the liberty of an individual is precious and is to be jealously protected by the constitution and the Honourable courts and for this reason an accused person should be admitted to bail and bond. The cornerstone of the justice system is that no one should be punished without the benefit of due process.
6. The relevant law to this application is Article 49(1)(h) which provides that:
(1)An arrested person has the right—
(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
7. From the reading of Article 149, bail is one of the rights protected by the Constitution. It is based on the notion that the accused is presumed innocent until proven guilty.
8. The provision relating to bail gives the prosecution the window of presenting compelling reasons to the court on why the accused person ought not to be released. This invokes discretion of the court to interrogate the reasons given by the prosecution and reach a conclusion whether the same are compelling.
9. The word “compelling” is defined in Concise Oxford Dictionary as “force or obliging to do something; bring about by force or pressure”.
10. The court must therefore ensure that compelling reasons presented to it militate against the grant of bail.
11. I have considered the charge, the grounds raised by prosecution in opposition of bond , the affidavit by accused . In addition, I have considered the pre-bail report, always a very useful tool in assessing the circumstances of an accused.
12. The purpose of bond is to ensure that an accused comes back to court for trial . On whether accused is a flight risk . The Learned counsel for the state submitted that he ran away to Narok after the incident and he was arrested there. However I find that this is an issue which required an affidavit by the investigating officer and not statement from the bar. It has not been established that accused is a flight risk .
13. The other issue is that of his own security . it has emerged from the pre-sentence report that the security of accused is at risk if he is released on bond as the community and the victims are very bitter with him as the incident is still fresh in their minds . Accused has deponed that he will not go back home but to Narok upon his release .
14. The court has also to consider the possibility of interference with witnesses, risk to witness/victims, the accused’s own safety, the nature of the charge and the strength of the prosecution’s case. The latter will only be considered jointly with other factors not as an independent impediment to grant of bail.
15. On the material before the court ,it emerges from the pre bail report that the accused has found an alternative place of abode since the situation back home is hostile and the community and the relatives are not ready to receive him back home.
16. Section 123 (2) of the Criminal Procedure Code provides that: The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
17. In regards to the tension and hostility at being high at his ancestral home in Masimba and as such the accused persons life is at risk ,this was demonstrated both by the accused himself and the prebail report ,the accused cannot be released to go back to Masimba, the accused filed an affidavit stating the alternative fixed abode pending hearing and determination of this case.
18. I take view that the accused having been accused of an offence of this nature and the hostility of the community he was logically not expected to stay at the ancestral home and that the action of the same was reasonably expected and cannot unless there are other factors to be considered as compelling reasons enough to deny the accused bond. The accused has provided an alternative place of abode should he be released on bond which has not been controverted by the prosecution.
19. I am of the view that the prosecution has established the existence of a compelling reasons to deny accused bond i.e his own security . However the pre-bail report recommends bond on condition that he gets an alternative place of abode . Accused has filed an affidavit and deponed that he has an alternative place of abode in Narok , Since accused says that he will not go back home but to Narok upon his release , I proceed to grant him bond of Ksh. 500,000/= WSLS on condition that he will stay in Narok pending hearing and determination of this case for his own security .
20. HEARING ON 15.9.25
21. It is hereby so ordered.
2. The state is opposed to grant of bail and bond, the prosecution reiterated that should the accused be granted bail and bond terms, the chances are high of him breaching since he is a flight risk, he states that the offence was committed on 2.10.24 since then he vanished from Masimba town and was later found on 13.2.25 in Narok and that his security is at risk.
3. The pre-bail report filed herein recommends bond to accused pending hearing on condition that he finds an alternative place of abode and the community and his family are against his return home as evidence by torching of the house of his mother and other houses in the compounds .
4. The accused filed an affidavit stating that he knows the hostility back at home and he has therefore opted to seek an alternative place of aboard that is his sisters place in Narok and he promises to abide by the rules if granted bond terms.
5. That it is trite law that granting bail entails the striking of a balance of proportionality in considering the rights of the applicant who is presumed innocent on the one hand and the public interest on the other. That on proportionality of bail and bond terms, the liberty of an individual is precious and is to be jealously protected by the constitution and the Honourable courts and for this reason an accused person should be admitted to bail and bond. The cornerstone of the justice system is that no one should be punished without the benefit of due process.
6. The relevant law to this application is Article 49(1)(h) which provides that:
(1)An arrested person has the right—
(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
7. From the reading of Article 149, bail is one of the rights protected by the Constitution. It is based on the notion that the accused is presumed innocent until proven guilty.
8. The provision relating to bail gives the prosecution the window of presenting compelling reasons to the court on why the accused person ought not to be released. This invokes discretion of the court to interrogate the reasons given by the prosecution and reach a conclusion whether the same are compelling.
9. The word “compelling” is defined in Concise Oxford Dictionary as “force or obliging to do something; bring about by force or pressure”.
10. The court must therefore ensure that compelling reasons presented to it militate against the grant of bail.
11. I have considered the charge, the grounds raised by prosecution in opposition of bond , the affidavit by accused . In addition, I have considered the pre-bail report, always a very useful tool in assessing the circumstances of an accused.
12. The purpose of bond is to ensure that an accused comes back to court for trial . On whether accused is a flight risk . The Learned counsel for the state submitted that he ran away to Narok after the incident and he was arrested there. However I find that this is an issue which required an affidavit by the investigating officer and not statement from the bar. It has not been established that accused is a flight risk .
13. The other issue is that of his own security . it has emerged from the pre-sentence report that the security of accused is at risk if he is released on bond as the community and the victims are very bitter with him as the incident is still fresh in their minds . Accused has deponed that he will not go back home but to Narok upon his release .
14. The court has also to consider the possibility of interference with witnesses, risk to witness/victims, the accused’s own safety, the nature of the charge and the strength of the prosecution’s case. The latter will only be considered jointly with other factors not as an independent impediment to grant of bail.
15. On the material before the court ,it emerges from the pre bail report that the accused has found an alternative place of abode since the situation back home is hostile and the community and the relatives are not ready to receive him back home.
16. Section 123 (2) of the Criminal Procedure Code provides that: The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
17. In regards to the tension and hostility at being high at his ancestral home in Masimba and as such the accused persons life is at risk ,this was demonstrated both by the accused himself and the prebail report ,the accused cannot be released to go back to Masimba, the accused filed an affidavit stating the alternative fixed abode pending hearing and determination of this case.
18. I take view that the accused having been accused of an offence of this nature and the hostility of the community he was logically not expected to stay at the ancestral home and that the action of the same was reasonably expected and cannot unless there are other factors to be considered as compelling reasons enough to deny the accused bond. The accused has provided an alternative place of abode should he be released on bond which has not been controverted by the prosecution.
19. I am of the view that the prosecution has established the existence of a compelling reasons to deny accused bond i.e his own security . However the pre-bail report recommends bond on condition that he gets an alternative place of abode . Accused has filed an affidavit and deponed that he has an alternative place of abode in Narok , Since accused says that he will not go back home but to Narok upon his release , I proceed to grant him bond of Ksh. 500,000/= WSLS on condition that he will stay in Narok pending hearing and determination of this case for his own security .
20. HEARING ON 15.9.25
21. It is hereby so ordered.