1. The three accused persons are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya. They took plea and all denied the charge on 29th April, 2021.
2. The record shows that the 3rd Accused, Joaz Ochieng, was released on bond and duly attended court until 24th March, 2025, after which he failed to attend court on subsequent dates.
3. The Court has considered his explanation for the period of his absence, which is supported by documentary evidence showing that he was admitted to a rehabilitation centre on 18th August, 2025 and discharged therefrom on 5th November, 2025. To that extent, the Court finds the explanation satisfactory and sufficient to account for his absence during that period.
4. However, no satisfactory explanation has been forthcoming from the 3rd Accused or his Counsel regarding his absence between 24th March, 2025 and 18th August, 2025. Further, even after his discharge from the rehabilitation facility on 5th November, 2025, the 3rd Accused did not present himself before the Court and only came before it following his arrest on 14th November, 2025.
5. In the circumstances, it remains unclear whether, upon his discharge, he had any intention of voluntarily presenting himself before the Court or resuming attendance of the proceedings.
6. Be that as it may, the prosecution now applies that his bond be cancelled and that he remains in remand custody until the trial is concluded.
7. To that end, the investigating officer Police Constable Nelson Obote has filed an affidavit that he swore on 8th June, 2026 in which he deposes that the 3rd Accused, was arrested on 17th November, 2020 and subsequently released on a bond of Ksh.250,000/- with one similar surety on 19th May, 2021, upon undertaking to attend court proceedings until otherwise directed by the Court.
8. The investigating officer deposes that the 3rd Accused subsequently absconded from the court proceedings, resulting in the issuance of a warrant of arrest against him on 29th September, 2025. He states that efforts to trace him through his known contacts were unsuccessful, and that neither his co-accused persons nor his surety was able to provide any information regarding his whereabouts.
9. He further states that it took considerable investigative efforts and the utilisation of intelligence sources to trace the him, and that he was eventually located at the Kiboswa Safaricom Data Centre on 13th November, 2025 and re-arrested. His arrest was thereafter recorded under OB No. 32/13/11/2025.
10. The officer further deposes that the 3rd Accused has no known or fixed place of residence and, in his view, is therefore a flight risk.
11. On that basis, and having regard to the interests of justice and the gravity of the offence with which the 3rd Accused is charged, he urges the Court to cancel the bond previously granted to him and order that he remains in custody until the conclusion of the trial, so as to prevent any further absconding from the court proceedings.
12. Notably, the 3rd Accused did not file any affidavit to controvert the investigating officer’s depositions and his Counsel simply asked that the court be lenient to him.
13. Having considered the material before me, the sole issue for determination is whether, in view of the 3rd Accused’s failure to attend court as required under the terms of his bond and the circumstances surrounding his subsequent arrest, the prosecution has demonstrated sufficient grounds to warrant the cancellation of his bond and his continued detention pending the conclusion of the trial.
14. Article 49(1)(h) of the Constitution guarantees an arrested person the right to be released on bond or bail on reasonable conditions, unless there are compelling reasons not to be released.
15. The grounds for cancellation of bond are substantially analogous to those applicable when determining whether an accused person should be denied bond in the first instance. In both instances, the Court is required to consider whether compelling reasons have been demonstrated to justify depriving the accused of his liberty.
16. Thus, where circumstances arising after the grant of bond disclose compelling reasons, including a demonstrated likelihood of absconding or failure to comply with the terms of bond, the Court is entitled to cancel the bond previously granted.
17. The grant of bond is therefore not an absolute or irrevocable entitlement. Where an accused person, having been released on bond upon specific terms, subsequently demonstrates by his conduct that he is unwilling or unable to comply with those terms, the Court is entitled to reconsider the continued appropriateness of the bond.
18. The question in the present case is consequently not whether the 3rd Accused was initially entitled to bond, but whether, in light of his subsequent conduct and the circumstances disclosed before the Court, there remain sufficient grounds for allowing him to continue enjoying the liberty previously granted to him.
19. In determining that question, the Court must balance the constitutional rights of the 3rd Accused with the equally important interests of the administration of criminal justice.
20. The right to bond must be exercised consistently with the obligation of an accused person to attend court whenever required and to facilitate, rather than frustrate, the expeditious determination of the criminal proceedings.
21. Bond is granted on the fundamental premise that the accused will honour the conditions imposed by the Court and avail himself to the jurisdiction of the Court until the matter is concluded or otherwise directed. Where that premise is materially undermined by the subsequent conduct of the accused, the Court is entitled to intervene.
22. In the present case, the 3rd Accused was released on bond on 19th May, 2021 upon the condition that he attend court proceedings until otherwise directed by the Court. The record demonstrates that he complied with that obligation until 24th March, 2025. Thereafter, however, he failed to attend court on subsequent dates.
23. The Court has accepted his explanation for the period between 18th August, 2025 and 5th November, 2025, when he was undergoing rehabilitation. That finding, however, does not account for his absence between 24th March, 2025 and 18th August, 2025, a period of about five months. More significantly, following his discharge on 5th November, 2025, he did not voluntarily return to Court and was instead arrested on 14th November, 2025.
24. The circumstances therefore disclose not merely an isolated failure to attend court, but a sustained period during which the 3rd Accused was unavailable to the Court.
25. The conduct of the 3rd Accused is further aggravated by the fact that a warrant of arrest had to be issued on 29th September, 2025 and, according to the investigating officer, considerable investigative efforts and intelligence resources were employed to trace him.
26. His co-accused persons and his surety were unable to account for his whereabouts. These circumstances are significant because the very purpose of requiring an accused person to attend court as a condition of bond is to ensure his availability for the expeditious conduct of the proceedings.
27. The fact that the State was required to resort to investigative measures to secure his presence is a strong indication that the existing bond arrangement had ceased to serve that purpose effectively.
28. Of particular significance is the position of the 3rd Accused’s surety. On 7th July, 2026, the surety withdrew from the bond, citing the 3rd Accused’s lack of cooperation and failure to provide appropriate information and updates. This development cannot be treated as inconsequential. A surety undertakes an important role in securing the attendance of an accused person and assumes responsibility for ensuring compliance with the terms of the bond.
29. The withdrawal of the surety on account of the 3rd Accused’s non-cooperation provides further evidence that the bond arrangement has broken down and that the existing conditions are no longer sufficient to secure his attendance before the Court.
30. It is also material that the 3rd Accused has not placed before the Court any affidavit controverting the investigating officer’s depositions. His counsel merely urged the Court to be lenient.
31. While the Court is not entitled to treat the absence of a replying affidavit, by itself, as proof of the prosecution’s allegations, the uncontroverted factual depositions concerning his absence, the efforts undertaken to trace him, his subsequent arrest and the withdrawal of his surety remain material considerations in determining whether the existing bond should continue.
32. The Court is mindful that the offence facing the 3rd Accused is murder, one of the most serious offences known to our criminal law. The seriousness of the charge, by itself, cannot constitute a compelling reason to deny an accused person bond. It is, however, a relevant circumstance when considered together with the accused person’s conduct and the wider interests of justice.
33. In the present matter, the gravity of the offence must be considered alongside the demonstrated failure of the 3rd Accused to comply with the terms upon which his liberty was granted.
34. There is also a broader and important dimension to the matter. The criminal justice process does not concern only the liberty interests of the accused. The family of the deceased and the prosecution witnesses have a legitimate interest in seeing the proceedings concluded expeditiously and in obtaining closure.
35. The prolonged absence of the 3rd Accused has, without doubt, disrupted the orderly progression of the trial and occasioned prejudice to those who continue to await the determination of the case. The Court must be alive to the anxiety and uncertainty occasioned to the family of the deceased and witnesses by the continued delay in bringing the proceedings to conclusion.
36. Equally, the delay occasioned by the 3rd Accused’s absence has prejudiced his co-accused persons. They are entitled to have the charges against them determined within a reasonable time and ought not to be indefinitely subjected to the burden and uncertainty of criminal proceedings because of the failure of one accused person to attend court.
37. The interests of justice therefore require the Court to ensure that the conduct of one accused does not unnecessarily impede the fair and expeditious determination of the case against the others.
38. All in all, the repeated and prolonged absence of the 3rd Accused, the unexplained portions of that absence, his failure to voluntarily return to Court after discharge from the rehabilitation facility, the need to issue a warrant of arrest, the investigative efforts required to trace and re-arrest him, and the subsequent withdrawal of his surety on account of his non-cooperation cumulatively demonstrate a substantial risk that he may again fail to attend court if released.
39. The Court is therefore satisfied that the prosecution has demonstrated compelling reasons sufficient to justify the cancellation of the bond previously granted to the 3rd Accused.
40. The circumstances before the Court show that the existing bond conditions have not secured his attendance and that there is a real and substantial risk of further absconding. The Court cannot permit the criminal proceedings to be repeatedly interrupted by conduct that undermines the very purpose for which bond was granted.
41. In the circumstances, I find that the prosecution has established sufficient and compelling grounds for the cancellation of the 3rd Accused’s bond. His bond is accordingly cancelled, and he shall be remanded in custody pending the conclusion of the trial.
42. The Court nevertheless directs that the trial shall proceed expeditiously and, to the extent possible, without unnecessary interruption. This is necessary not only in the interests of the deceased’s family and the witnesses, but also in fairness to all three accused persons, including the 1st and 2nd Accused, whose right to have the charges against them determined within a reasonable time should not be compromised by the conduct of the 3rd Accused.
43. The trial will proceed on 7th December, 2026.
44. It is so ordered.
DELIVERED, SIGNED & DATED this 18th day of September, 2026.
JOE M. OMIDO
JUDGE
1ST AND 2ND ACCUSED: Both Absent, with leave of the Court.
3RD ACCUSED: Present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Mr. Sala & Mr. Lore.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.
2. The record shows that the 3rd Accused, Joaz Ochieng, was released on bond and duly attended court until 24th March, 2025, after which he failed to attend court on subsequent dates.
3. The Court has considered his explanation for the period of his absence, which is supported by documentary evidence showing that he was admitted to a rehabilitation centre on 18th August, 2025 and discharged therefrom on 5th November, 2025. To that extent, the Court finds the explanation satisfactory and sufficient to account for his absence during that period.
4. However, no satisfactory explanation has been forthcoming from the 3rd Accused or his Counsel regarding his absence between 24th March, 2025 and 18th August, 2025. Further, even after his discharge from the rehabilitation facility on 5th November, 2025, the 3rd Accused did not present himself before the Court and only came before it following his arrest on 14th November, 2025.
5. In the circumstances, it remains unclear whether, upon his discharge, he had any intention of voluntarily presenting himself before the Court or resuming attendance of the proceedings.
6. Be that as it may, the prosecution now applies that his bond be cancelled and that he remains in remand custody until the trial is concluded.
7. To that end, the investigating officer Police Constable Nelson Obote has filed an affidavit that he swore on 8th June, 2026 in which he deposes that the 3rd Accused, was arrested on 17th November, 2020 and subsequently released on a bond of Ksh.250,000/- with one similar surety on 19th May, 2021, upon undertaking to attend court proceedings until otherwise directed by the Court.
8. The investigating officer deposes that the 3rd Accused subsequently absconded from the court proceedings, resulting in the issuance of a warrant of arrest against him on 29th September, 2025. He states that efforts to trace him through his known contacts were unsuccessful, and that neither his co-accused persons nor his surety was able to provide any information regarding his whereabouts.
9. He further states that it took considerable investigative efforts and the utilisation of intelligence sources to trace the him, and that he was eventually located at the Kiboswa Safaricom Data Centre on 13th November, 2025 and re-arrested. His arrest was thereafter recorded under OB No. 32/13/11/2025.
10. The officer further deposes that the 3rd Accused has no known or fixed place of residence and, in his view, is therefore a flight risk.
11. On that basis, and having regard to the interests of justice and the gravity of the offence with which the 3rd Accused is charged, he urges the Court to cancel the bond previously granted to him and order that he remains in custody until the conclusion of the trial, so as to prevent any further absconding from the court proceedings.
12. Notably, the 3rd Accused did not file any affidavit to controvert the investigating officer’s depositions and his Counsel simply asked that the court be lenient to him.
13. Having considered the material before me, the sole issue for determination is whether, in view of the 3rd Accused’s failure to attend court as required under the terms of his bond and the circumstances surrounding his subsequent arrest, the prosecution has demonstrated sufficient grounds to warrant the cancellation of his bond and his continued detention pending the conclusion of the trial.
14. Article 49(1)(h) of the Constitution guarantees an arrested person the right to be released on bond or bail on reasonable conditions, unless there are compelling reasons not to be released.
15. The grounds for cancellation of bond are substantially analogous to those applicable when determining whether an accused person should be denied bond in the first instance. In both instances, the Court is required to consider whether compelling reasons have been demonstrated to justify depriving the accused of his liberty.
16. Thus, where circumstances arising after the grant of bond disclose compelling reasons, including a demonstrated likelihood of absconding or failure to comply with the terms of bond, the Court is entitled to cancel the bond previously granted.
17. The grant of bond is therefore not an absolute or irrevocable entitlement. Where an accused person, having been released on bond upon specific terms, subsequently demonstrates by his conduct that he is unwilling or unable to comply with those terms, the Court is entitled to reconsider the continued appropriateness of the bond.
18. The question in the present case is consequently not whether the 3rd Accused was initially entitled to bond, but whether, in light of his subsequent conduct and the circumstances disclosed before the Court, there remain sufficient grounds for allowing him to continue enjoying the liberty previously granted to him.
19. In determining that question, the Court must balance the constitutional rights of the 3rd Accused with the equally important interests of the administration of criminal justice.
20. The right to bond must be exercised consistently with the obligation of an accused person to attend court whenever required and to facilitate, rather than frustrate, the expeditious determination of the criminal proceedings.
21. Bond is granted on the fundamental premise that the accused will honour the conditions imposed by the Court and avail himself to the jurisdiction of the Court until the matter is concluded or otherwise directed. Where that premise is materially undermined by the subsequent conduct of the accused, the Court is entitled to intervene.
22. In the present case, the 3rd Accused was released on bond on 19th May, 2021 upon the condition that he attend court proceedings until otherwise directed by the Court. The record demonstrates that he complied with that obligation until 24th March, 2025. Thereafter, however, he failed to attend court on subsequent dates.
23. The Court has accepted his explanation for the period between 18th August, 2025 and 5th November, 2025, when he was undergoing rehabilitation. That finding, however, does not account for his absence between 24th March, 2025 and 18th August, 2025, a period of about five months. More significantly, following his discharge on 5th November, 2025, he did not voluntarily return to Court and was instead arrested on 14th November, 2025.
24. The circumstances therefore disclose not merely an isolated failure to attend court, but a sustained period during which the 3rd Accused was unavailable to the Court.
25. The conduct of the 3rd Accused is further aggravated by the fact that a warrant of arrest had to be issued on 29th September, 2025 and, according to the investigating officer, considerable investigative efforts and intelligence resources were employed to trace him.
26. His co-accused persons and his surety were unable to account for his whereabouts. These circumstances are significant because the very purpose of requiring an accused person to attend court as a condition of bond is to ensure his availability for the expeditious conduct of the proceedings.
27. The fact that the State was required to resort to investigative measures to secure his presence is a strong indication that the existing bond arrangement had ceased to serve that purpose effectively.
28. Of particular significance is the position of the 3rd Accused’s surety. On 7th July, 2026, the surety withdrew from the bond, citing the 3rd Accused’s lack of cooperation and failure to provide appropriate information and updates. This development cannot be treated as inconsequential. A surety undertakes an important role in securing the attendance of an accused person and assumes responsibility for ensuring compliance with the terms of the bond.
29. The withdrawal of the surety on account of the 3rd Accused’s non-cooperation provides further evidence that the bond arrangement has broken down and that the existing conditions are no longer sufficient to secure his attendance before the Court.
30. It is also material that the 3rd Accused has not placed before the Court any affidavit controverting the investigating officer’s depositions. His counsel merely urged the Court to be lenient.
31. While the Court is not entitled to treat the absence of a replying affidavit, by itself, as proof of the prosecution’s allegations, the uncontroverted factual depositions concerning his absence, the efforts undertaken to trace him, his subsequent arrest and the withdrawal of his surety remain material considerations in determining whether the existing bond should continue.
32. The Court is mindful that the offence facing the 3rd Accused is murder, one of the most serious offences known to our criminal law. The seriousness of the charge, by itself, cannot constitute a compelling reason to deny an accused person bond. It is, however, a relevant circumstance when considered together with the accused person’s conduct and the wider interests of justice.
33. In the present matter, the gravity of the offence must be considered alongside the demonstrated failure of the 3rd Accused to comply with the terms upon which his liberty was granted.
34. There is also a broader and important dimension to the matter. The criminal justice process does not concern only the liberty interests of the accused. The family of the deceased and the prosecution witnesses have a legitimate interest in seeing the proceedings concluded expeditiously and in obtaining closure.
35. The prolonged absence of the 3rd Accused has, without doubt, disrupted the orderly progression of the trial and occasioned prejudice to those who continue to await the determination of the case. The Court must be alive to the anxiety and uncertainty occasioned to the family of the deceased and witnesses by the continued delay in bringing the proceedings to conclusion.
36. Equally, the delay occasioned by the 3rd Accused’s absence has prejudiced his co-accused persons. They are entitled to have the charges against them determined within a reasonable time and ought not to be indefinitely subjected to the burden and uncertainty of criminal proceedings because of the failure of one accused person to attend court.
37. The interests of justice therefore require the Court to ensure that the conduct of one accused does not unnecessarily impede the fair and expeditious determination of the case against the others.
38. All in all, the repeated and prolonged absence of the 3rd Accused, the unexplained portions of that absence, his failure to voluntarily return to Court after discharge from the rehabilitation facility, the need to issue a warrant of arrest, the investigative efforts required to trace and re-arrest him, and the subsequent withdrawal of his surety on account of his non-cooperation cumulatively demonstrate a substantial risk that he may again fail to attend court if released.
39. The Court is therefore satisfied that the prosecution has demonstrated compelling reasons sufficient to justify the cancellation of the bond previously granted to the 3rd Accused.
40. The circumstances before the Court show that the existing bond conditions have not secured his attendance and that there is a real and substantial risk of further absconding. The Court cannot permit the criminal proceedings to be repeatedly interrupted by conduct that undermines the very purpose for which bond was granted.
41. In the circumstances, I find that the prosecution has established sufficient and compelling grounds for the cancellation of the 3rd Accused’s bond. His bond is accordingly cancelled, and he shall be remanded in custody pending the conclusion of the trial.
42. The Court nevertheless directs that the trial shall proceed expeditiously and, to the extent possible, without unnecessary interruption. This is necessary not only in the interests of the deceased’s family and the witnesses, but also in fairness to all three accused persons, including the 1st and 2nd Accused, whose right to have the charges against them determined within a reasonable time should not be compromised by the conduct of the 3rd Accused.
43. The trial will proceed on 7th December, 2026.
44. It is so ordered.
DELIVERED, SIGNED & DATED this 18th day of September, 2026.
JOE M. OMIDO
JUDGE
1ST AND 2ND ACCUSED: Both Absent, with leave of the Court.
3RD ACCUSED: Present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Mr. Sala & Mr. Lore.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.