1. The Accused Persons have been charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.
2. The accused were arraigned in court for plea on 5.2.25 before Homabay High Court and pleaded not guilty to the charges. They duly represented herein by Mr. Omina advocate .
3. Hon. Lady Justice O. Sewe recused herself from this matter on 19.2.25 and hence she transferred the same to this court for hearing and determination.
4. The defence filed a Notice of Motion Application dated 4.2.25 seeking that accused be admitted to reasonable bail and/or bond terms.
5. THAT the application is supported by the annexed affidavit of Justus Elvis Okello and on the grounds that:
a. The applicants are presumed innocent until proven guilty.
b. The applicants are of noble character and have deep community ties
c. The applicants who are his siblings have cooperated with the law enforcement officers since their arrest till they were charged .
d. The applicants have a fixed place of aboard.
6. Mr Justus deponed that he is a brother to the accused and that they are presumed innocent until proven guilty. Also that they have a fixed place of abode at Kabonyo village where they have lived for over 10 years. Further that they have strong community ties. Further that accused have been in custody since 27.12.24 and hence they will continue suffering unless the application is allowed and that the applicants are not a flight risk and they have young families which depend on them. Also that they are not holders of passports and thus they cannot flee from the country .
7. The state filed a replying affidavit by No. 77965 Corporal Charles Asiyo the investigating officer herein. He deponed that the applicants are related to crucial witnesses herein. Also that accused and their proxies have been threatening witnesses and offering them Kshs 300,000/=bribes disappear so as not testify. He cited 13.1.25, 17.1.25 ,18.1.25 24.1.25 as the dates that the said threats and offers were made to the witnesses. Further that the incidents on the last two dates were reported to police vide OB No. 04//24/01/2025 Magina police station at 13:37 hrs and OB No. 04/03 /02/2025 at 16:07 hrs at the same police station. He stated the right to bond may be limited when compelling reasons like safety of accused and witnesses have been raised. Corporal Asiyo also told this court that they have intelligence information that members of public are baying for the blood of accused if released . He sought that accused be denied bond.
8. Hon Justice Sewe called for a pre-bail reports and the same were filed and they support findings of the investigating officer that accused herein have been threatening witnesses through emissaries and that the widow to the deceased has relocated from her home area for her safety. Also that accused have no fixed abode as they have not constructed houses in their homes and that the community has expressed hostility towards accused and threatened to lynch them if they are released.
DETERMINATION
9. I have considered the application, the replying affidavit and the pre-bail reports.
10. Article 49(1)(h) of the Constitution provides that 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 as rightly stated by the accused and the state herein.
11. Section 3 of the Bail and Bond Policy Guidelines sets out the general principles that shall guide the process of bail and bond decision-making. They are as follows: -
a) The right of accused person to be presumed innocent.
b) Accused Person’s right to liberty.
c) Accused’s obligation to attend trial.
d) Right to reasonable bail and bond terms.
e) Bail determination must balance the rights of the accused persons and the interest of justice.
f) Consideration for the rights of victims.
12. The purpose of bond is to ensure that an accused person comes back to court for trial (Section 4.9 of the Bail and Bond Policy Guidelines)
Also see Republic v Danford Kabage Mwangi (2016) eKLR;
13. The following factors, which are by no means exhaustive, should be considered in an application for bond: -
a) The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
b) The strength of the prosecution case.
c) Character and antecedents of the accused person.
d) The failure of the accused person to observe bail or bond terms.
e) Likelihood of interfering with witnesses.
f) The need to protect the victim(s) of the crime.
g) The relationship between the accused person and potential witnesses.
h) Child offenders.
i) The accused person is a flight risk.
j) Whether accused person is gainfully employed.
k) Public order, peace or security.
l) Protection of the accused person.
14. Indeed, Section 123A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya, provides for the considerations that a Court should have in mind when considering an application for bail or bond. They are:
a) The nature and seriousness of the offence;
b) The character, antecedents, associations and community ties of the accused person;
c) The defendant’s record in respect of the fulfillment of obligations under previous grants of bail; and
d) The strength of the evidence of his having committed the offence.
15. These conditions were restated in the cases of Republic v Daniel Ndegwa Wachira [2015] where Justice Mativo (as he then was) referred to the case of the Supreme Court in Nigeria in Alhaji Mujahid Dukubo-Asari vs Federal Republic of Nigeria SC 20A/2006; the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR pronounced itself as such; and the case of Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR) (3 December 2021) (Ruling) where Justice Mativo (as he then was) referred to the case of the Supreme Court of India in Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 which Court laid out similar conditions to be considered in an application for bail pending the hearing of an appeal.
16. In all these, the common denominator is that it is for the prosecution to establish the existence of these compelling reasons. See Paragraphs 23 and 28 of the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR
17. I agree with the finding in the case of Oscar Edwin Okimaru v Republic [2021] eKLR, where the Court held as follows:
“20. Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release…”
18. The Prosecution raised the following issues in their response:
a) Interference with witnesses and /or safety of witnesses.
b) Safety of accused persons.
19. On interference with witnesses, the investigating officer has deponed that on 13.1.25, 17.1.25 ,18.1.25 , 24.1.25 accused through their agents or proxies threatened the witnesses and also offered them bribes of Kshs. 300,000/= to disappear from home so as not to testify in this case. He said incidents on the last two dates were reported to police vide OB No. 04//24/01/2025 Magina police station at 13:37 hrs and OB No. 04/03 02/2025 at 16:07 hrs at Magina police station. This was not challenged by way of a reply. In the case of Republic v Dwight Sagaray & 4 Others [2013] eKLR, where it was held “As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju vs Republic [1973] E.A. 284, where the court in dismissing the prosecutor’s fear of interference with witnesses, stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking the court to speculate.”
20. Applying the same rationale in the case (supra) to the instant case, it behooved the Prosecution to establish that the Applicant was likely to interfere with witnesses or provide proof that there was indeed interference with witnesses. It is clear to me that accused tried to induce the witnesses not to testify herein by offering to buy off some of them at Kshs 300,000/= and also made threats to the witnesses.
21. The pre-bail report indicates that the community is opposed to release of accused on bond saying that they would lynch them if released on bond and they are a flight risk. The issue of interference with witnesses is also supported by the affidavit of the investigating officer. Whilst the state has an obligation to protect the rights of all its citizenry, it would be foolhardy for this Court, or any other court, to release an accused person where there is real evidence that the life of the said accused person would be in danger. In the case of Rotich v Republic (Criminal Case E007 of 2022) [2022] KEHC 616 (14 June 2022) (Ruling), the Court held as follows: -
“12. …. Of course the ire is expected subside (sic) after some time but for now the risk to the Applicant’s life is a compelling reason for denying him bond.”
22. Accused have not denied that their lives are in danger as found by the probation officer and the investigating officer. I find that the lives of accused will be endangered if released on bond as the situation at home is still volatile This court has a duty to protect the lives of accused. It is only fair and just that the Accused Person’s lives be preserved by them being remanded in custody pending trial.
23. On whether accused are a flight risk, the probation officer found that accused have not built houses in their village and thus the community feels that they are a flight risk. Justus deponed that accused have a known place of abode i.e. Kabonyo village and thus are not a flight risk. The investigating officer did not say that he had a difficulty arresting accused. The mere fact that accused do not have houses in the village does not mean that they are likely to abscond. It has not been established that accused are a flight risk.
24. Though this is a fresh matter which is yet to be heard and accused are presumed innocent until proven guilty, I find that prosecution have established compelling reasons to deny accused bond i.e. his own security, interference with witnesses and safety of witnesses.
25. The application for bond is disallowed for the foregoing reasons.
26. Hearing on 17th & 18th of September 2025.
27. It is so ordered.
T. A ODERA
JUDGE
26.3.25
Delivered virtually Via teams Platform on this day of 2025 in the presence of:
Mr. Koima for the State.
Mr Omina for both accused
Both accused
CA: Oigo
Omina: we seek to be supplied with witness statements to enable us prepare for trial.
Koima: I will inform my colleague to serve witness statement and other evidence.
Order: statements and all evidence to be relied on by prosecution be supplied to defence within 2 weeks from today. Mention on 25.6.25.
T.A ODERA
JUDGE
26.3.25
2. The accused were arraigned in court for plea on 5.2.25 before Homabay High Court and pleaded not guilty to the charges. They duly represented herein by Mr. Omina advocate .
3. Hon. Lady Justice O. Sewe recused herself from this matter on 19.2.25 and hence she transferred the same to this court for hearing and determination.
4. The defence filed a Notice of Motion Application dated 4.2.25 seeking that accused be admitted to reasonable bail and/or bond terms.
5. THAT the application is supported by the annexed affidavit of Justus Elvis Okello and on the grounds that:
a. The applicants are presumed innocent until proven guilty.
b. The applicants are of noble character and have deep community ties
c. The applicants who are his siblings have cooperated with the law enforcement officers since their arrest till they were charged .
d. The applicants have a fixed place of aboard.
6. Mr Justus deponed that he is a brother to the accused and that they are presumed innocent until proven guilty. Also that they have a fixed place of abode at Kabonyo village where they have lived for over 10 years. Further that they have strong community ties. Further that accused have been in custody since 27.12.24 and hence they will continue suffering unless the application is allowed and that the applicants are not a flight risk and they have young families which depend on them. Also that they are not holders of passports and thus they cannot flee from the country .
7. The state filed a replying affidavit by No. 77965 Corporal Charles Asiyo the investigating officer herein. He deponed that the applicants are related to crucial witnesses herein. Also that accused and their proxies have been threatening witnesses and offering them Kshs 300,000/=bribes disappear so as not testify. He cited 13.1.25, 17.1.25 ,18.1.25 24.1.25 as the dates that the said threats and offers were made to the witnesses. Further that the incidents on the last two dates were reported to police vide OB No. 04//24/01/2025 Magina police station at 13:37 hrs and OB No. 04/03 /02/2025 at 16:07 hrs at the same police station. He stated the right to bond may be limited when compelling reasons like safety of accused and witnesses have been raised. Corporal Asiyo also told this court that they have intelligence information that members of public are baying for the blood of accused if released . He sought that accused be denied bond.
8. Hon Justice Sewe called for a pre-bail reports and the same were filed and they support findings of the investigating officer that accused herein have been threatening witnesses through emissaries and that the widow to the deceased has relocated from her home area for her safety. Also that accused have no fixed abode as they have not constructed houses in their homes and that the community has expressed hostility towards accused and threatened to lynch them if they are released.
DETERMINATION
9. I have considered the application, the replying affidavit and the pre-bail reports.
10. Article 49(1)(h) of the Constitution provides that 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 as rightly stated by the accused and the state herein.
11. Section 3 of the Bail and Bond Policy Guidelines sets out the general principles that shall guide the process of bail and bond decision-making. They are as follows: -
a) The right of accused person to be presumed innocent.
b) Accused Person’s right to liberty.
c) Accused’s obligation to attend trial.
d) Right to reasonable bail and bond terms.
e) Bail determination must balance the rights of the accused persons and the interest of justice.
f) Consideration for the rights of victims.
12. The purpose of bond is to ensure that an accused person comes back to court for trial (Section 4.9 of the Bail and Bond Policy Guidelines)
Also see Republic v Danford Kabage Mwangi (2016) eKLR;
13. The following factors, which are by no means exhaustive, should be considered in an application for bond: -
a) The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
b) The strength of the prosecution case.
c) Character and antecedents of the accused person.
d) The failure of the accused person to observe bail or bond terms.
e) Likelihood of interfering with witnesses.
f) The need to protect the victim(s) of the crime.
g) The relationship between the accused person and potential witnesses.
h) Child offenders.
i) The accused person is a flight risk.
j) Whether accused person is gainfully employed.
k) Public order, peace or security.
l) Protection of the accused person.
14. Indeed, Section 123A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya, provides for the considerations that a Court should have in mind when considering an application for bail or bond. They are:
a) The nature and seriousness of the offence;
b) The character, antecedents, associations and community ties of the accused person;
c) The defendant’s record in respect of the fulfillment of obligations under previous grants of bail; and
d) The strength of the evidence of his having committed the offence.
15. These conditions were restated in the cases of Republic v Daniel Ndegwa Wachira [2015] where Justice Mativo (as he then was) referred to the case of the Supreme Court in Nigeria in Alhaji Mujahid Dukubo-Asari vs Federal Republic of Nigeria SC 20A/2006; the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR pronounced itself as such; and the case of Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR) (3 December 2021) (Ruling) where Justice Mativo (as he then was) referred to the case of the Supreme Court of India in Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 which Court laid out similar conditions to be considered in an application for bail pending the hearing of an appeal.
16. In all these, the common denominator is that it is for the prosecution to establish the existence of these compelling reasons. See Paragraphs 23 and 28 of the Court of Appeal case of Michael Juma Oyamo & Another v Republic [2019] eKLR
17. I agree with the finding in the case of Oscar Edwin Okimaru v Republic [2021] eKLR, where the Court held as follows:
“20. Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of his release…”
18. The Prosecution raised the following issues in their response:
a) Interference with witnesses and /or safety of witnesses.
b) Safety of accused persons.
19. On interference with witnesses, the investigating officer has deponed that on 13.1.25, 17.1.25 ,18.1.25 , 24.1.25 accused through their agents or proxies threatened the witnesses and also offered them bribes of Kshs. 300,000/= to disappear from home so as not to testify in this case. He said incidents on the last two dates were reported to police vide OB No. 04//24/01/2025 Magina police station at 13:37 hrs and OB No. 04/03 02/2025 at 16:07 hrs at Magina police station. This was not challenged by way of a reply. In the case of Republic v Dwight Sagaray & 4 Others [2013] eKLR, where it was held “As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju vs Republic [1973] E.A. 284, where the court in dismissing the prosecutor’s fear of interference with witnesses, stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking the court to speculate.”
20. Applying the same rationale in the case (supra) to the instant case, it behooved the Prosecution to establish that the Applicant was likely to interfere with witnesses or provide proof that there was indeed interference with witnesses. It is clear to me that accused tried to induce the witnesses not to testify herein by offering to buy off some of them at Kshs 300,000/= and also made threats to the witnesses.
21. The pre-bail report indicates that the community is opposed to release of accused on bond saying that they would lynch them if released on bond and they are a flight risk. The issue of interference with witnesses is also supported by the affidavit of the investigating officer. Whilst the state has an obligation to protect the rights of all its citizenry, it would be foolhardy for this Court, or any other court, to release an accused person where there is real evidence that the life of the said accused person would be in danger. In the case of Rotich v Republic (Criminal Case E007 of 2022) [2022] KEHC 616 (14 June 2022) (Ruling), the Court held as follows: -
“12. …. Of course the ire is expected subside (sic) after some time but for now the risk to the Applicant’s life is a compelling reason for denying him bond.”
22. Accused have not denied that their lives are in danger as found by the probation officer and the investigating officer. I find that the lives of accused will be endangered if released on bond as the situation at home is still volatile This court has a duty to protect the lives of accused. It is only fair and just that the Accused Person’s lives be preserved by them being remanded in custody pending trial.
23. On whether accused are a flight risk, the probation officer found that accused have not built houses in their village and thus the community feels that they are a flight risk. Justus deponed that accused have a known place of abode i.e. Kabonyo village and thus are not a flight risk. The investigating officer did not say that he had a difficulty arresting accused. The mere fact that accused do not have houses in the village does not mean that they are likely to abscond. It has not been established that accused are a flight risk.
24. Though this is a fresh matter which is yet to be heard and accused are presumed innocent until proven guilty, I find that prosecution have established compelling reasons to deny accused bond i.e. his own security, interference with witnesses and safety of witnesses.
25. The application for bond is disallowed for the foregoing reasons.
26. Hearing on 17th & 18th of September 2025.
27. It is so ordered.
T. A ODERA
JUDGE
26.3.25
Delivered virtually Via teams Platform on this day of 2025 in the presence of:
Mr. Koima for the State.
Mr Omina for both accused
Both accused
CA: Oigo
Omina: we seek to be supplied with witness statements to enable us prepare for trial.
Koima: I will inform my colleague to serve witness statement and other evidence.
Order: statements and all evidence to be relied on by prosecution be supplied to defence within 2 weeks from today. Mention on 25.6.25.
T.A ODERA
JUDGE
26.3.25