'1. The applicants filed the application dated 11.6.25 seeking :
a. That the probation officer who prepared and filed the reports dated 17.2.2025 by summoned for cross-examination.
b. The orders of this court denying bond to the applicants dated 26.3.25 be reviewed and /or set aside .
c. An order for a fresh pre-bail report by an independent probation officer be ordered for which ought to include the view of defence , local administrat6ors and all interested parties.
d. The court to reconsider the issue of bond on merit upon looking at the new pre-bail report.
e. Nay other orders as this court may deem fit to grant
2. The application is based on the application is based on the annexed affidavits of Justus Elvis Okello a brother to the4 accused and Jeremiah Bwana Okello the3 1st accused herein and the grounds that ;
i. The applicants are entitled to bond under Article 49 (1) of the Constitution.
ii. Sections 123 and 123A of the Criminal procedure code provides for what amounts to compelling reasons for denial of bond .
iii. Defence was not granted an opportunity not participate in the report and that Justice4 Okello a b rothe4r to the applicants was never interviewed.
iv. Applicants have fixed placed of abode .
v. Defence was not given an opportunity to respond to the4 pre- bail report or cross examine the maker.
vi. The denial of bail was fundamentally flawed and based on the procedurally defective report amounts to violation of the Constitutional rights right of accused and miscarriage of justice .
vii. It is just and proper that a new report be filed to safeguard fundamental rights of the applicants .
viii. The balance of convenience and interest of justice favour granting of the orders sought.
3. Justine deponed that he is a brother to accused and that he was not interviewed by the probation officer before making the first report. Also that the accused have a fixed place of aboard at Kabonyo Ndiwa in Homabay county and they also have houses there . The said that accused have never been subjected to any mob justice . He sought a fresh pre-bail report and deponed that accused are entitled to bond under Article 49 (1) of the Constitution.
4. The affidavit of accused no1 raises similar issues as that of Justine in all material aspect6s .He denied that he is a flight risk , has no fixed place of abode and that his life will be at risk if released on bond . he said that the first pre-bail report filed herein violates his right to bond under Article 49 (1) of the Constitution. Also that he co-operated with police during investigations of the instant case.
5. Defence counsel submitted that the 2nd pre-bail report by Mr Chrispinus Adenya Ben filed herein on 17.7.25 is flawed and unfit for human consumption. Counsel took issue with the report and submitted as follows ‘’The report dated 17/7/2025, as highlighted, was expressly compiled under “quantity standard of probation and aftercare services guidelines,” a framework suited only for persons already convicted and awaiting sentencing ( See Page 2 at the introduction of the said report). A pre-trial report should strictly adhere to the Judiciary Bail and Bond Policy Guidelines, 2015, which emphasize the presumption of innocence, the need for factual accuracy, and exclusion of bias, rumor, or unsupported community sentiment. A report built on inapplicable standards is fundamentally impeachable. It risks infringing the constitutional presumption of innocence under Article 49(1)(h) of the Constitution of Kenya, 2010, and undermines Section 123(1) of the Criminal Procedure Code, which orients bail discretion in favor of liberty unless compelling reasons are demonstrated.’’.
6. The state indicated that they had no issue with the pre-bail report.
7. This is a 2nd ruling on bond . It is trite law that bond is generally available to accused persons unless there are compelling reasons to deny bond. Accused persons are also presumed innocent at this stage In an application for bond review the court shall consider if there are change of circumstances to warrant granting of bond/review of the previous orders .The principle of changed circumstances is captured in Judiciary in the Bail/Bond Policy Guidelines as one of the additional features a court is required in deciding whether to grant an accused person bail:-
a) The period the accused person has already spent in custody since arrest.
b) The probable period of detention until the conclusion of the trial if the accused is not released on bail.
c) The reason or reasons for any delay in the conclusion of the trial and any role of the accused with regard to such delay.
d) Change of circumstances during the trial.
e) The maximum custodial sentence in case the accused person is convicted. (Emphasis added)
8. The changed circumstances test was expounded in the case of Republic v Diana Suleiman Said & another [2014] eKLR where the court held as follows:
“The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances changed in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.”
9. I have carefully considered the application herein and perused the submissions by counsel for accused herein Paragraph 4.26 of the Bial /Bond policy guidelines provides for procedure for bail/bond hearing to be adopted by the courts . Paragragh 4.26 (e) provides that defence is entitled to be granted an opportunity to contest any finding in the pre-bail -report. On 26.2.25 this matter was mentioned but the Learned defence counsel was absent and the County Director of probation and after case services presented his report . The matter was placed for mention on 27.2.25 as defence counsel was absent. Come 27.2.25 , The probation officer asked the court to adopt his report and the Learned Counsel for the state agreed with the report . The Learned defence counsel informed that court that there was a pending bond application and the court proceeded to give a ruling dated for the same . Counsel did not seek time to respond to the pre-bail report. Be it as it may, counsel later filed the instant application. Defence submitted that an accused person is presumed innocent until proven guilty , that the purpose of bond is to ensure that an accused person comes to court , that the bribery theory by the investigating officer is false, that security of accused is not at risk and that accused have fixed places of abode and are not a flight risk . The reports herein are based on the social background information gathered by the probation officer upon visiting the shared community of accused and the victims herein.
10. There is no requirement that the probation officers must interview the family of the accused and this court would be overreaching it’s mandate if it were to order inter interview of specific persons . In any event the pre-bail reports are generally not binding on the court but are merely meant to guide as rightly submitted by defence and the court must consider it together with the circumstances of the case and replying affidavits and submissions if any to arrive at a just determination of the issue of bond. Pre-bail reports can either Positive or negative and the mere fact that a report is negative does not go to the integrity or competence of the author. . Probation and after care services department is independent and has well trained officers who are expected to execute their mandate professionally .
11. The issues of flight risk , security of witnesses , interference with witnesses raised by 1st accused and his brother were determined in the ruling dated 26.3.25 . I will not belabor to make finding on the same once more . The applicants ought to have appealed against the ruling dated 26.3.25 it they were aggrieved by the same.
12. The applicants have not established changed circumstances to warrant review of the orders made in the ruling dated 26.3.25 . I proceed to dismiss the application. HG on 17th and 18th of September 2025.
T.A ODERA
JUDGE
10.9.25
Delivered Virtually in Via Teams platform on this 10th day of September 2025 in the presence of the applicants , Mr Obiero advocate for the applicants . Mr Koima for the state and Roseline Court Assistant.
Obiero : I seek leave to appeal.
Koima: No objection
Order: Leave to appeal is granted.
T.A ODERA
JUDGE
10.9.25
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a. That the probation officer who prepared and filed the reports dated 17.2.2025 by summoned for cross-examination.
b. The orders of this court denying bond to the applicants dated 26.3.25 be reviewed and /or set aside .
c. An order for a fresh pre-bail report by an independent probation officer be ordered for which ought to include the view of defence , local administrat6ors and all interested parties.
d. The court to reconsider the issue of bond on merit upon looking at the new pre-bail report.
e. Nay other orders as this court may deem fit to grant
2. The application is based on the application is based on the annexed affidavits of Justus Elvis Okello a brother to the4 accused and Jeremiah Bwana Okello the3 1st accused herein and the grounds that ;
i. The applicants are entitled to bond under Article 49 (1) of the Constitution.
ii. Sections 123 and 123A of the Criminal procedure code provides for what amounts to compelling reasons for denial of bond .
iii. Defence was not granted an opportunity not participate in the report and that Justice4 Okello a b rothe4r to the applicants was never interviewed.
iv. Applicants have fixed placed of abode .
v. Defence was not given an opportunity to respond to the4 pre- bail report or cross examine the maker.
vi. The denial of bail was fundamentally flawed and based on the procedurally defective report amounts to violation of the Constitutional rights right of accused and miscarriage of justice .
vii. It is just and proper that a new report be filed to safeguard fundamental rights of the applicants .
viii. The balance of convenience and interest of justice favour granting of the orders sought.
3. Justine deponed that he is a brother to accused and that he was not interviewed by the probation officer before making the first report. Also that the accused have a fixed place of aboard at Kabonyo Ndiwa in Homabay county and they also have houses there . The said that accused have never been subjected to any mob justice . He sought a fresh pre-bail report and deponed that accused are entitled to bond under Article 49 (1) of the Constitution.
4. The affidavit of accused no1 raises similar issues as that of Justine in all material aspect6s .He denied that he is a flight risk , has no fixed place of abode and that his life will be at risk if released on bond . he said that the first pre-bail report filed herein violates his right to bond under Article 49 (1) of the Constitution. Also that he co-operated with police during investigations of the instant case.
5. Defence counsel submitted that the 2nd pre-bail report by Mr Chrispinus Adenya Ben filed herein on 17.7.25 is flawed and unfit for human consumption. Counsel took issue with the report and submitted as follows ‘’The report dated 17/7/2025, as highlighted, was expressly compiled under “quantity standard of probation and aftercare services guidelines,” a framework suited only for persons already convicted and awaiting sentencing ( See Page 2 at the introduction of the said report). A pre-trial report should strictly adhere to the Judiciary Bail and Bond Policy Guidelines, 2015, which emphasize the presumption of innocence, the need for factual accuracy, and exclusion of bias, rumor, or unsupported community sentiment. A report built on inapplicable standards is fundamentally impeachable. It risks infringing the constitutional presumption of innocence under Article 49(1)(h) of the Constitution of Kenya, 2010, and undermines Section 123(1) of the Criminal Procedure Code, which orients bail discretion in favor of liberty unless compelling reasons are demonstrated.’’.
6. The state indicated that they had no issue with the pre-bail report.
7. This is a 2nd ruling on bond . It is trite law that bond is generally available to accused persons unless there are compelling reasons to deny bond. Accused persons are also presumed innocent at this stage In an application for bond review the court shall consider if there are change of circumstances to warrant granting of bond/review of the previous orders .The principle of changed circumstances is captured in Judiciary in the Bail/Bond Policy Guidelines as one of the additional features a court is required in deciding whether to grant an accused person bail:-
a) The period the accused person has already spent in custody since arrest.
b) The probable period of detention until the conclusion of the trial if the accused is not released on bail.
c) The reason or reasons for any delay in the conclusion of the trial and any role of the accused with regard to such delay.
d) Change of circumstances during the trial.
e) The maximum custodial sentence in case the accused person is convicted. (Emphasis added)
8. The changed circumstances test was expounded in the case of Republic v Diana Suleiman Said & another [2014] eKLR where the court held as follows:
“The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances changed in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.”
9. I have carefully considered the application herein and perused the submissions by counsel for accused herein Paragraph 4.26 of the Bial /Bond policy guidelines provides for procedure for bail/bond hearing to be adopted by the courts . Paragragh 4.26 (e) provides that defence is entitled to be granted an opportunity to contest any finding in the pre-bail -report. On 26.2.25 this matter was mentioned but the Learned defence counsel was absent and the County Director of probation and after case services presented his report . The matter was placed for mention on 27.2.25 as defence counsel was absent. Come 27.2.25 , The probation officer asked the court to adopt his report and the Learned Counsel for the state agreed with the report . The Learned defence counsel informed that court that there was a pending bond application and the court proceeded to give a ruling dated for the same . Counsel did not seek time to respond to the pre-bail report. Be it as it may, counsel later filed the instant application. Defence submitted that an accused person is presumed innocent until proven guilty , that the purpose of bond is to ensure that an accused person comes to court , that the bribery theory by the investigating officer is false, that security of accused is not at risk and that accused have fixed places of abode and are not a flight risk . The reports herein are based on the social background information gathered by the probation officer upon visiting the shared community of accused and the victims herein.
10. There is no requirement that the probation officers must interview the family of the accused and this court would be overreaching it’s mandate if it were to order inter interview of specific persons . In any event the pre-bail reports are generally not binding on the court but are merely meant to guide as rightly submitted by defence and the court must consider it together with the circumstances of the case and replying affidavits and submissions if any to arrive at a just determination of the issue of bond. Pre-bail reports can either Positive or negative and the mere fact that a report is negative does not go to the integrity or competence of the author. . Probation and after care services department is independent and has well trained officers who are expected to execute their mandate professionally .
11. The issues of flight risk , security of witnesses , interference with witnesses raised by 1st accused and his brother were determined in the ruling dated 26.3.25 . I will not belabor to make finding on the same once more . The applicants ought to have appealed against the ruling dated 26.3.25 it they were aggrieved by the same.
12. The applicants have not established changed circumstances to warrant review of the orders made in the ruling dated 26.3.25 . I proceed to dismiss the application. HG on 17th and 18th of September 2025.
T.A ODERA
JUDGE
10.9.25
Delivered Virtually in Via Teams platform on this 10th day of September 2025 in the presence of the applicants , Mr Obiero advocate for the applicants . Mr Koima for the state and Roseline Court Assistant.
Obiero : I seek leave to appeal.
Koima: No objection
Order: Leave to appeal is granted.
T.A ODERA
JUDGE
10.9.25
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