'
The two accused persons Davis Kilonzo Muinde Alias Kilosh and Margaret Nzula Mutiso are charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the 16 th day of July 2023, at Zimmerman area in Kasarani Sub-County within Nairobi County Davis Kilonzo Muinde Alias Kilosh and Margaret Nzula Mutiso murdered LUCIA NZIVULU MBOLU.
The first accused person has applied to this court for release on bail pending the hearing of the matter. The 2 nd accused wishes to pursue a plea negotiation with the state for a possible reduction of the charge of murder to that of manslaughter in line with the provisions of Section 137 A to 137 0 of the Criminal Procedure Code.
The two accused persons were charged on the 21 st August 2023 and have all along been in custody. The 1 st accused seeks to be released on bail arguing that under Article 49 (1) (h) of the Constitution he is entitled to bail unless there are compelling reason to deny the same.
According to him, he is not a flight risk and has a fixed abode where he will be residing pending the trial. Further, the 1 st accused states that he is unlikely to interfere with witnesses and that he is not a danger to society.
Ms. Dela counsel for the state on 19 th February 2025 did not oppose the release of the 1 st accused on bail but urged the court to call for a pre-bail report before the court could decide on the matter.
This court called for a pre-bail report and the probation department filed pre-bail reports on the 7 th of March 2025 in respect of both accused persons recommending that both accused persons may be released on bail.
Mr. Francis Mutua advocate for the victims later appeared in the proceedings and protested that the prosecution had not involved the family of the deceased on the question of bail and also stated that the victims had not been consulted on the issue of pre-bargain in respect of the 2 nd accused. This court directed Mr. Mutua advocate to file submissions on the matter of bail in recognition of their right under Section 9 (2) (a) and of the Victims Protection Act to participate in the proceedings.
Counsel for the victims filed his submissions which I have reproduced hereunder :-
“ The application is strongly opposed by the victim‟s family who have made this fact clear to the prosecution.
2. The grounds of opposition are that:-
(i) The prosecution has strong and irrefutable evidence against the accused persons. (ii) The accused persons are likely to interfere with witnesses and ensure that justice for the victim‟s family is denied.
(iii) The accused persons are currently unemployed and have no permanent place of residence and if released they may not be found again.
(iv) The accused persons are charged with a serious offence and chances of them absconding are high.
(v) The accused persons have caused the victim‟s family and relative‟s tremendous pain and suffering.
(vi) The accused persons ought not to be allowed to be seen to have resumed their normal life while the victim’s family is still grieving which discourages
witnesses and sends a wrong message.
3. The accused herein is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The enormity of the crime should not be lost to this court.
4. The request by the accused persons for bail or bond raises serious concerns and one of the concerns is justice for the victim’s family which cannot be ignored or wished away as the accused persons seem to think.
5. We are fully aware of the provision of Article 49 (1) of the constitution of Kenya 2010 which provides that:-
“An accused 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.”
6. The constitution however has not identified what qualifies under the term „compelling reasons‟. The ordinary meaning according to Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain meaning it is obvious that the court has to consider any fact or circumstance brought before it on a case- to -case basis and it is our humble submission that this is not a proper case for grant of bail.
7. There is plenty of case law in this country when it comes to the issue of whether to grant or deny bail pending trial of an accused person. The case law has set out some criteria which the trial court has to consider in the exercise of its judicial discretion to grant or refuse bail. It is apparent that the right to bail or bond is not absolute and where there are compelling reasons the right to bond or bail is restricted.
8. We rely on the Kenya Judiciary‟s Bail and Bond policy guideline of March 2015 at page 25 which has set out the considerations that the court ought to take into account in determining whether or not to grant Bail. It states as follows:-
“ The following procedures should apply to the bail hearing.
(a). The prosecution shall satisfy the court on balance probabilities of the
existence of compelling reasons that justify the denial of bail. The prosecution
must there force, state the reasons that in its view should persuade the court to deny the accused person bail including the following:”
a) That the accused person is likely to fail to attend court proceedings or.
b) That the accused person is likely to commit or about the commission of a serious offence or.
c) That the exception to the right to bail stipulated under Section 123 A of
the Criminal Procedure Code is applicable in the circumstances or.
d) That the accused person is likely to endanger the safety of victims
individuals or the public or.
e) That the accused is likely to interfere with witnesses or evidence or.
f) That the accused person is likely to endanger national security or.
g) That it is in the public interest to detain the accused person in custody.”
9. The conduct of the accused persons after they committed the offence ought to be taken into account. The accused persons murdered the victim and attempted to cover up the murder by claiming that she is the one who stamped herself and proceeded to take her to hospital after they had waited for hours to allow the victim bleed to death.
10. In every murder there is a grieving father, mother, brother, sister, friends and relatives; it is very unfair for a person charged with such serious offence to be allowed to resume his normal life just a few months after being arraigned in court. It is not easy for the grieving family members to fully understand what is happening and why and it is our humble submission that the court should carefully balance the freedom of the accused persons and the expectations of the victim’s family and the greater public good.
11. The prosecution is expected to give good and specific reasons for denial of bail to the accused and it is our humble submissions that the prosecution in this matter has done so. Weighing the interests of justice against the rights to personal freedom of the accused persons, the accused persons should be denied bail at this stage. The application in our view has been made too early in the day and ought to be renewed after a few months. That is all.”
The victim’s family views are aptly captured in the submissions filed by Counsel for the victims and the court has duly considered the same.
The law on bail pending trial is that an accused person has the right to bail unless there are compelling reasons to deny the same.
The duty of establishing compelling reasons for a court to deny bail rests with the prosecution. The denial of bail cannot be premised on whim and caprice. The court must be persuaded that indeed the reasons advanced are compelling enough to meet the test set out under Article 24 of the constitution which provides;-
Limitation of rights and fundamental freedoms.
24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
(4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
(5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—
(a) Article 31 — Privacy;
(b) Article 36 — Freedom of association;
(c) Article 37 — Assembly, demonstration, picketing and petition;
(d) Article 41 — Labour relations;
(e) Article 43 — Economic and social rights; and
(f) Article 49 — Rights of arrested persons.’’
The excerpt above captures the victim’s representation on the issue of bail which the court has taken into account.
The right to bail has a direct bearing on the right to a fair trial. It is not in the province of a judge to limit the rights of an accused person in a trial to please parties in the case. The due process of law must be followed and the scales of justice evenly balanced to ensure that the rights of innocent persons are not unfairly limited because of the strong belief by the victim of a crime that an individual has committed a crime.
The presumption of innocence must at all times be upheld as envisaged under Article 50(2) (a) of the Constitution. The constitution having declared all offences bailable, the gravity of the offence only becomes a relevant consideration in setting the terms but cannot be regarded as the predominant compelling reason for the denial of bail.
The gravity of the offense becomes important when one is considering the element of risk of flight. The state in this case as well as the victims have not presented evidence that the first accused is a flight risk.
The pre-bail report similarly does not indicate so. The court is therefore left to deal with mere apprehension on the part of the victims. The state is the duty bearer to ensure that those persons accused of committing crimes are held to account. If the 1 st accused was a flight risk the state would have said so.
Similarly, no evidence has been presented to show that he is likely to interfere with witnesses once released on bail. The victims have not stated the witnesses who may be interfered with should the 1 st accused be released on bail.
In Republic v Danson Mgunya & Another [2010] eKLR where Justice Ibrahim (as he then was) rendered that:
“Liberty is precious and no one’s liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted. I will never take liberty for granted …we must interpret the constitution in enhancing the rights and freedoms granted and enshrined rather than in a manner that curtails them. Each case must be decided in its own circumstances, touch and context.”
I fully agree with the position taken by Ibrahim J (as he then was) in the above cited authority and add that the fact that one is accused of committing an offence does not necessarily mean that he is guilty of the offence charged. The presumption of innocence under Article 50(2) of the Constitution must be upheld and protected throughout the trial process.
The accused person should be allowed to continue enjoying his freedom and normal life until such time that he is proved to be guilty of the charge and fate catches up with him. That is when his liberty can lawfully and justifiably be taken away. To do otherwise would be to contravene the provisions of Article 49(1) (h). The court must be persuaded that there are compelling reasons to deny bail in order to decline the request for bail. It cannot be on the basis of emotional considerations or perceptions by the society or victims as regards the accused.
In the case of WATORO –V- REPUBLIC (1991) KLR 220 at P.283 Porter J stated: “… I think I have made it clear over a number of rulings in bail application that I take the view on authority that the paramount consideration in bail application is whether the Accused will turn up for his trial…”
The 1 st accused person has not been shown to be a man that is unlikely to turn up for his trial once released on bail. The prosecution has not placed any material before me to demonstrate that he is likely to do so.
Accordingly, it would be a great travesty of justice to deny him bail in the circumstances. To release him on bail does not in any way amount to a denial of justice to the victims as suggested by counsel for the victims in his submission .
In the end the 1 st accused is hereby admitted to bail in the following terms;-
The 1 st accused DAVIS KILONZO MUINDE Alias KILOSH shall be released on a bond of Ksh 500,000 plus 1 (one) surety of a similar amount
The 1 st accused and his surety shall provide mobile telephone numbers that they shall retain in use throughout the period of the trial.
The 1 st accused shall deposit a copy of his national Identity Card with the court.
As I conclude, let me address a matter that was casually raised by counsel for the victims on the procedure to be adopted in applications for bail. Whereas a practice may have developed where parties file formal applications for bail, that remains a good practice but must should never tie the hands of a judge or judicial officer who is orally moved to grant bail in a trial. The court must always be guided by the provisions of Article 159 (2) (b) and (d).
Justice should not be delayed as the parties insist on procedural technicalities that often occasion delay. It is upon the prosecution to lay before the court material that would on a balance of probabilities persuade the court that there are compelling reasons. To insist on having the accused person file a formal application is to introduce an unwarranted fetter on the discretion of the judge to decide on the matter of bail expeditiously.
The law as expressed in Legal Notice No 117 of 2023 The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules,2013 allows an accused person to move the court orally for an order for release on bail.
Rule 10 (3) and (4) allows the presentation of oral applications for enforcement of the Bill of Rights. The provisions state:-
Form of petition.
10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition; (f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g) the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court (emphasis mine).
The accused persons need not be subjected to the rigorous process of filing formal applications. The duty to establish compelling reasons is that of the prosecution otherwise bail should be granted as a matter of course. The wheels of justice can turn at times very slowly and to add a requirement for all bail applications to be formal, the courts would be rolling back the gains we have made pursuant to Article 159 of the Constitution.
The court shall not comment on the plea negotiation process in respect of the 2 nd Accused for now, since Section 9 of the Victims Act and Sections 137A-O of the Criminal Procedure Code comprehensively address the matter.
The bail application in respect of the 1 st accused succeeds and he shall be released on the conditions set out by the court in this ruling.
It is so ordered.
'
The two accused persons Davis Kilonzo Muinde Alias Kilosh and Margaret Nzula Mutiso are charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the 16 th day of July 2023, at Zimmerman area in Kasarani Sub-County within Nairobi County Davis Kilonzo Muinde Alias Kilosh and Margaret Nzula Mutiso murdered LUCIA NZIVULU MBOLU.
The first accused person has applied to this court for release on bail pending the hearing of the matter. The 2 nd accused wishes to pursue a plea negotiation with the state for a possible reduction of the charge of murder to that of manslaughter in line with the provisions of Section 137 A to 137 0 of the Criminal Procedure Code.
The two accused persons were charged on the 21 st August 2023 and have all along been in custody. The 1 st accused seeks to be released on bail arguing that under Article 49 (1) (h) of the Constitution he is entitled to bail unless there are compelling reason to deny the same.
According to him, he is not a flight risk and has a fixed abode where he will be residing pending the trial. Further, the 1 st accused states that he is unlikely to interfere with witnesses and that he is not a danger to society.
Ms. Dela counsel for the state on 19 th February 2025 did not oppose the release of the 1 st accused on bail but urged the court to call for a pre-bail report before the court could decide on the matter.
This court called for a pre-bail report and the probation department filed pre-bail reports on the 7 th of March 2025 in respect of both accused persons recommending that both accused persons may be released on bail.
Mr. Francis Mutua advocate for the victims later appeared in the proceedings and protested that the prosecution had not involved the family of the deceased on the question of bail and also stated that the victims had not been consulted on the issue of pre-bargain in respect of the 2 nd accused. This court directed Mr. Mutua advocate to file submissions on the matter of bail in recognition of their right under Section 9 (2) (a) and of the Victims Protection Act to participate in the proceedings.
Counsel for the victims filed his submissions which I have reproduced hereunder :-
“ The application is strongly opposed by the victim‟s family who have made this fact clear to the prosecution.
2. The grounds of opposition are that:-
(i) The prosecution has strong and irrefutable evidence against the accused persons. (ii) The accused persons are likely to interfere with witnesses and ensure that justice for the victim‟s family is denied.
(iii) The accused persons are currently unemployed and have no permanent place of residence and if released they may not be found again.
(iv) The accused persons are charged with a serious offence and chances of them absconding are high.
(v) The accused persons have caused the victim‟s family and relative‟s tremendous pain and suffering.
(vi) The accused persons ought not to be allowed to be seen to have resumed their normal life while the victim’s family is still grieving which discourages
witnesses and sends a wrong message.
3. The accused herein is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The enormity of the crime should not be lost to this court.
4. The request by the accused persons for bail or bond raises serious concerns and one of the concerns is justice for the victim’s family which cannot be ignored or wished away as the accused persons seem to think.
5. We are fully aware of the provision of Article 49 (1) of the constitution of Kenya 2010 which provides that:-
“An accused 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.”
6. The constitution however has not identified what qualifies under the term „compelling reasons‟. The ordinary meaning according to Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain meaning it is obvious that the court has to consider any fact or circumstance brought before it on a case- to -case basis and it is our humble submission that this is not a proper case for grant of bail.
7. There is plenty of case law in this country when it comes to the issue of whether to grant or deny bail pending trial of an accused person. The case law has set out some criteria which the trial court has to consider in the exercise of its judicial discretion to grant or refuse bail. It is apparent that the right to bail or bond is not absolute and where there are compelling reasons the right to bond or bail is restricted.
8. We rely on the Kenya Judiciary‟s Bail and Bond policy guideline of March 2015 at page 25 which has set out the considerations that the court ought to take into account in determining whether or not to grant Bail. It states as follows:-
“ The following procedures should apply to the bail hearing.
(a). The prosecution shall satisfy the court on balance probabilities of the
existence of compelling reasons that justify the denial of bail. The prosecution
must there force, state the reasons that in its view should persuade the court to deny the accused person bail including the following:”
a) That the accused person is likely to fail to attend court proceedings or.
b) That the accused person is likely to commit or about the commission of a serious offence or.
c) That the exception to the right to bail stipulated under Section 123 A of
the Criminal Procedure Code is applicable in the circumstances or.
d) That the accused person is likely to endanger the safety of victims
individuals or the public or.
e) That the accused is likely to interfere with witnesses or evidence or.
f) That the accused person is likely to endanger national security or.
g) That it is in the public interest to detain the accused person in custody.”
9. The conduct of the accused persons after they committed the offence ought to be taken into account. The accused persons murdered the victim and attempted to cover up the murder by claiming that she is the one who stamped herself and proceeded to take her to hospital after they had waited for hours to allow the victim bleed to death.
10. In every murder there is a grieving father, mother, brother, sister, friends and relatives; it is very unfair for a person charged with such serious offence to be allowed to resume his normal life just a few months after being arraigned in court. It is not easy for the grieving family members to fully understand what is happening and why and it is our humble submission that the court should carefully balance the freedom of the accused persons and the expectations of the victim’s family and the greater public good.
11. The prosecution is expected to give good and specific reasons for denial of bail to the accused and it is our humble submissions that the prosecution in this matter has done so. Weighing the interests of justice against the rights to personal freedom of the accused persons, the accused persons should be denied bail at this stage. The application in our view has been made too early in the day and ought to be renewed after a few months. That is all.”
The victim’s family views are aptly captured in the submissions filed by Counsel for the victims and the court has duly considered the same.
The law on bail pending trial is that an accused person has the right to bail unless there are compelling reasons to deny the same.
The duty of establishing compelling reasons for a court to deny bail rests with the prosecution. The denial of bail cannot be premised on whim and caprice. The court must be persuaded that indeed the reasons advanced are compelling enough to meet the test set out under Article 24 of the constitution which provides;-
Limitation of rights and fundamental freedoms.
24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—
(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
(4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
(5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—
(a) Article 31 — Privacy;
(b) Article 36 — Freedom of association;
(c) Article 37 — Assembly, demonstration, picketing and petition;
(d) Article 41 — Labour relations;
(e) Article 43 — Economic and social rights; and
(f) Article 49 — Rights of arrested persons.’’
The excerpt above captures the victim’s representation on the issue of bail which the court has taken into account.
The right to bail has a direct bearing on the right to a fair trial. It is not in the province of a judge to limit the rights of an accused person in a trial to please parties in the case. The due process of law must be followed and the scales of justice evenly balanced to ensure that the rights of innocent persons are not unfairly limited because of the strong belief by the victim of a crime that an individual has committed a crime.
The presumption of innocence must at all times be upheld as envisaged under Article 50(2) (a) of the Constitution. The constitution having declared all offences bailable, the gravity of the offence only becomes a relevant consideration in setting the terms but cannot be regarded as the predominant compelling reason for the denial of bail.
The gravity of the offense becomes important when one is considering the element of risk of flight. The state in this case as well as the victims have not presented evidence that the first accused is a flight risk.
The pre-bail report similarly does not indicate so. The court is therefore left to deal with mere apprehension on the part of the victims. The state is the duty bearer to ensure that those persons accused of committing crimes are held to account. If the 1 st accused was a flight risk the state would have said so.
Similarly, no evidence has been presented to show that he is likely to interfere with witnesses once released on bail. The victims have not stated the witnesses who may be interfered with should the 1 st accused be released on bail.
In Republic v Danson Mgunya & Another [2010] eKLR where Justice Ibrahim (as he then was) rendered that:
“Liberty is precious and no one’s liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted. I will never take liberty for granted …we must interpret the constitution in enhancing the rights and freedoms granted and enshrined rather than in a manner that curtails them. Each case must be decided in its own circumstances, touch and context.”
I fully agree with the position taken by Ibrahim J (as he then was) in the above cited authority and add that the fact that one is accused of committing an offence does not necessarily mean that he is guilty of the offence charged. The presumption of innocence under Article 50(2) of the Constitution must be upheld and protected throughout the trial process.
The accused person should be allowed to continue enjoying his freedom and normal life until such time that he is proved to be guilty of the charge and fate catches up with him. That is when his liberty can lawfully and justifiably be taken away. To do otherwise would be to contravene the provisions of Article 49(1) (h). The court must be persuaded that there are compelling reasons to deny bail in order to decline the request for bail. It cannot be on the basis of emotional considerations or perceptions by the society or victims as regards the accused.
In the case of WATORO –V- REPUBLIC (1991) KLR 220 at P.283 Porter J stated: “… I think I have made it clear over a number of rulings in bail application that I take the view on authority that the paramount consideration in bail application is whether the Accused will turn up for his trial…”
The 1 st accused person has not been shown to be a man that is unlikely to turn up for his trial once released on bail. The prosecution has not placed any material before me to demonstrate that he is likely to do so.
Accordingly, it would be a great travesty of justice to deny him bail in the circumstances. To release him on bail does not in any way amount to a denial of justice to the victims as suggested by counsel for the victims in his submission .
In the end the 1 st accused is hereby admitted to bail in the following terms;-
The 1 st accused DAVIS KILONZO MUINDE Alias KILOSH shall be released on a bond of Ksh 500,000 plus 1 (one) surety of a similar amount
The 1 st accused and his surety shall provide mobile telephone numbers that they shall retain in use throughout the period of the trial.
The 1 st accused shall deposit a copy of his national Identity Card with the court.
As I conclude, let me address a matter that was casually raised by counsel for the victims on the procedure to be adopted in applications for bail. Whereas a practice may have developed where parties file formal applications for bail, that remains a good practice but must should never tie the hands of a judge or judicial officer who is orally moved to grant bail in a trial. The court must always be guided by the provisions of Article 159 (2) (b) and (d).
Justice should not be delayed as the parties insist on procedural technicalities that often occasion delay. It is upon the prosecution to lay before the court material that would on a balance of probabilities persuade the court that there are compelling reasons. To insist on having the accused person file a formal application is to introduce an unwarranted fetter on the discretion of the judge to decide on the matter of bail expeditiously.
The law as expressed in Legal Notice No 117 of 2023 The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules,2013 allows an accused person to move the court orally for an order for release on bail.
Rule 10 (3) and (4) allows the presentation of oral applications for enforcement of the Bill of Rights. The provisions state:-
Form of petition.
10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition; (f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g) the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court (emphasis mine).
The accused persons need not be subjected to the rigorous process of filing formal applications. The duty to establish compelling reasons is that of the prosecution otherwise bail should be granted as a matter of course. The wheels of justice can turn at times very slowly and to add a requirement for all bail applications to be formal, the courts would be rolling back the gains we have made pursuant to Article 159 of the Constitution.
The court shall not comment on the plea negotiation process in respect of the 2 nd Accused for now, since Section 9 of the Victims Act and Sections 137A-O of the Criminal Procedure Code comprehensively address the matter.
The bail application in respect of the 1 st accused succeeds and he shall be released on the conditions set out by the court in this ruling.
It is so ordered.
'