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The accused has been charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the PenaL code, the particulars of the charges are that : On 5 th February 2020 at Kioi Soweto in Embakasi east within Nairobi the accused murdered Priscillah Cherono .
The accused denied the charges and later lodged his application for bail which was dismissed as per the ruling of Honourable Justice Wakiaga on 1/10/2020. The court found that the witnesses and the accused were related and witnesses would be influenced
His further application for review was disallowed as per the ruling delivered on 23/2/2021 by Justice Ogembo (deceased) with findings that the circumstances had not changed and witnesses had not testified .
The accused has moved this through an oral application for bail review .He urges that he is a breadwinner and that the children have been orphaned with no relative to take care of them .
That the remaining witnesses are police officers and that he will not interfere with them.
PROSECUTION’S GROUNDS & SUBMISSIONS
The prosecution opposed the application and contend that other civilian witnesses are yet to testify.The court was reffered to the testimony of Pw10 who was declared hostile, that the witness is the accused young brother .The accused was in custody when the evidence was interfered. That the case could be fastracked and hearing dates taken.
The accused reiterated that there is no evidence produced to show that he interfered or influenced pw10 evidence. That the witness stated that he was couched Pw10. Further that PW10 relocated and resided upcountry. Lastly, that the court advised that bail could be reconsidered after witnesses testify . The prosecution has not indicated that they will call other family members. The prosecution has also been reluctant to proceed with the case and that the case is an old matter.
THE PREBAIL REPORT .
The prebail report is on record. The accused is 37 years old and he was married to the deceased. They cohabited for 8 years and were blessed with 3 children .The accused is a former police officer attached at Kaloleni police post , he later ventured into politics .He had been engaged in business at the time of the incident and earned between Ksh 70,000/= and Ksh 80,000/=.
The accused family supports his application and can raise cash bail of Ksh 100,000/= . The accused sister is willing to stand surety and can be listed as a competent contact person. However, they do not have collateral and the family also struggles financially.
If released , the accused will reside at his rural home in Migori , Kiyoi area. The community also vouches for his release .
The deceased family opposed the application .The family is afraid that the accused will jeopardise the case and interfere with witnesses. The children are aged 12,10 and 8 years old and are under care of his step brother Peter Chepkwony in Kericho county and attend Laboso Primary .They are traumatized and deeply affected by the mother’s death .
The probation officer recommends the accused release on stringent bail terms.
Analysis & Determination.
The accused right to bail is guaranteed under Article 49 (h) of the Constitution but can be limited where compelling reasons exist .The import of Section 123 is that the court has power to review bail applications at any time from arraignment and during the trial.
Statute provides that :-
Bail in certain cases
“(1)When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:
Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3)The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.”
I have considered the application and previous rulings of this court. The prosecution has called 13 witnesses whose evidence are also on record .The accused is claimed to have murdered his wife, the incidence also occurred in the confines of the home and in the presence of his young brother pw10. The children were also residing at the house when the incident occurred.
Justice Wakiaga found that within such set up and his presence in the home, there was a likelihood of witness interference.
The police filed the affidavit of PC Gikundi sworn on 22/9/2020 with depositions that the police established that the accused told witnesses not to attend court and that he knows best to deal with them if they set foot in court .The accused also sent texts to witnesses using anonymous numbers telling them not to cooperate with police . Lastly that potential witnesses relocated from Nairobi to rural home in Nyanza and switched off their phones in fear of the accused reprisal. He opposed bail until civilians testify
The decision on bail review was that the witnesses had not testified and that the circumstances at the time of the earlier ruling still persist.
The main issues for determination of the present application are Whether threat of witness interference still persist and Whether stringent terms can be issued to prevent interference .
The prosecution’s case is that PW10’S having been declared hostile witness, his evidence was influenced and that it happened when the accused was in remand .
Witness interference was described in the case of Republic –Vs- Jaktan Mayende & 3 others as :-
“… Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give schewd evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused .”
The accused contends that there is no proof that PW10’S evidence was influenced and that he had a hand in it. Article 49 (h) is clear that the burden of proof is on the prosecution to prove compelling grounds, the grounds should not be speculative.
The court has already found threat of witness interference as a compelling reason to deny bond. The court also relied on the affidavit of CPL Gikundi the investigating officer filed in opposition of the first application for bail. The investigating officer affidavit also painted the picture of perceive threat and interference .
Further, the decision of Ogembo J was that the witnesses had not testified and change of circumstances could not be determined at that stage.
The burden of proof now vests on the applicant to prove that circumstances have changed over the period and that it would be safe to release him on bond. The court must consider the facts before it and make its determination judiciously.
I have considered the application and submissions made in court and the Pre-bail report.
Firstly, I find that contrary to the accused statement to the court on the desperate state of the children, the children are in the safe custody of the accused brother and also attend school .The children are of tender age and still traumatized following the death of their mother. The children also resided in the home which was the crime scene.
The accused states that if he is released he will reside at his ancestral home with his family, again making him come within reach of relatives and potential witnesses and the children.
Secondly, I note that the prosecution has not advised court whether remaining witnesses would be civilian and /or family members. Also whether the witnesses, who have not been mentioned in the prosecutions oppositions would be at risk.
So far, the deceased colleagues and her employer have testified. Expert witnesses and police officers have also given evidence and the body was identified by close relatives.
The accused brother testified and on turn of events, he was declared hostile witness following the prosecutions application under Sections 152-163 of the Evidence Act. This court found that the prosecution is entitled to have its own witness declared hostile where the witness after Pw10 gave witness that contradicted his written statement.
The accused has urged that the prosecution has not proved his participation or influence on the witness testimony.
Section 161 of the Evidence provides that:-
“The court may in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.’
The import of the evidence is that it is unreliable and may not inform a conviction unless it there evidence to support the allegation against an accused person. See the case of Mtune v Republic [2023] KEHC 17792 (KLR).
In Alowo –Vs- . Republic [1972] EA page 324, the East Africa Court of Appeal held that :-" The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible .”
From this findings, the evidence of a hostile witness does not have any connection to the accused right to bond .It should be considered at the end of the trial and care should be taken at the interlocutory stage not to pre-empt the trial.
The prosecution must demonstrate that the accused had/has a hand in his brother’s testimony. The burden is beyond reasonable doubt. The prosecution’s submissions are not substantiated of proof that the witness was influenced by his brother, the Accused person. However, it remains a fact that the witness was declared hostile witness as his evidence earlier was different from what was presented during trial but who influenced him or if he was influenced remains a mystery.
The accused submitted that he spent time in custody since plea taking. The age of the matter also dictates active steps of resolution of the matter and also allowing the accused constitutional right to bail where the threat cited no longer exist or can be mitigated.
Despite these findings favour the accused application, I still find that compelling reasons to exist at the advance stage of the trial.
At this stage, it is arguable that the strength of the evidence, the gravity of the charges and sentence pose risk of absconding. The main consideration of bail is whether the accused will turn up for trial if his application is allowed.
Strength of the prosecution case is a renowned compelling ground that can be considered at advanced stages of trial when the prosecution case has been disclosed or at the defence stage. It may lead to absconding and is a ground considered in the interest of justice to ensure the accused attends trial to its logical conclusion.
In the case of S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August 2017) , cited in Republic vs. Danson Mgunya & Another [2010] eKLR ., the court held that:
The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.
In Watoro vs. Republic [1991] KLR 220, it was held thus:
“The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody … the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question : it has happened before, and in similar cases…the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction…”
Stringent terms cannot prevent absconding or access to witnesses at the advanced stage of the case.
This is a family related matter and there is apprehension that the family members who may have not testified and shall await the confirmation and trial to proceed.
Republic v Peter Chege Mucheru [2018] eKLR , Kimondo J held,
“There is palpable anger the victim''s home. The victim''s Protection Act 2014 requires the views of victim be taken into account at this stage. I empathize with the accused. But I reached the conclusion that his safety is not guaranteed at the locus in quo. That to me is a compelling reason not to release the accused on bail. The application for bail is refused.”
The same feeling is seen from IOs report and Pre Bail Report.In the upshot, the application for bail review is unmerited.
RULING DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION AT NAIROBI THIS 22/9/2025
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The accused has been charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the PenaL code, the particulars of the charges are that : On 5 th February 2020 at Kioi Soweto in Embakasi east within Nairobi the accused murdered Priscillah Cherono .
The accused denied the charges and later lodged his application for bail which was dismissed as per the ruling of Honourable Justice Wakiaga on 1/10/2020. The court found that the witnesses and the accused were related and witnesses would be influenced
His further application for review was disallowed as per the ruling delivered on 23/2/2021 by Justice Ogembo (deceased) with findings that the circumstances had not changed and witnesses had not testified .
The accused has moved this through an oral application for bail review .He urges that he is a breadwinner and that the children have been orphaned with no relative to take care of them .
That the remaining witnesses are police officers and that he will not interfere with them.
PROSECUTION’S GROUNDS & SUBMISSIONS
The prosecution opposed the application and contend that other civilian witnesses are yet to testify.The court was reffered to the testimony of Pw10 who was declared hostile, that the witness is the accused young brother .The accused was in custody when the evidence was interfered. That the case could be fastracked and hearing dates taken.
The accused reiterated that there is no evidence produced to show that he interfered or influenced pw10 evidence. That the witness stated that he was couched Pw10. Further that PW10 relocated and resided upcountry. Lastly, that the court advised that bail could be reconsidered after witnesses testify . The prosecution has not indicated that they will call other family members. The prosecution has also been reluctant to proceed with the case and that the case is an old matter.
THE PREBAIL REPORT .
The prebail report is on record. The accused is 37 years old and he was married to the deceased. They cohabited for 8 years and were blessed with 3 children .The accused is a former police officer attached at Kaloleni police post , he later ventured into politics .He had been engaged in business at the time of the incident and earned between Ksh 70,000/= and Ksh 80,000/=.
The accused family supports his application and can raise cash bail of Ksh 100,000/= . The accused sister is willing to stand surety and can be listed as a competent contact person. However, they do not have collateral and the family also struggles financially.
If released , the accused will reside at his rural home in Migori , Kiyoi area. The community also vouches for his release .
The deceased family opposed the application .The family is afraid that the accused will jeopardise the case and interfere with witnesses. The children are aged 12,10 and 8 years old and are under care of his step brother Peter Chepkwony in Kericho county and attend Laboso Primary .They are traumatized and deeply affected by the mother’s death .
The probation officer recommends the accused release on stringent bail terms.
Analysis & Determination.
The accused right to bail is guaranteed under Article 49 (h) of the Constitution but can be limited where compelling reasons exist .The import of Section 123 is that the court has power to review bail applications at any time from arraignment and during the trial.
Statute provides that :-
Bail in certain cases
“(1)When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:
Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3)The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.”
I have considered the application and previous rulings of this court. The prosecution has called 13 witnesses whose evidence are also on record .The accused is claimed to have murdered his wife, the incidence also occurred in the confines of the home and in the presence of his young brother pw10. The children were also residing at the house when the incident occurred.
Justice Wakiaga found that within such set up and his presence in the home, there was a likelihood of witness interference.
The police filed the affidavit of PC Gikundi sworn on 22/9/2020 with depositions that the police established that the accused told witnesses not to attend court and that he knows best to deal with them if they set foot in court .The accused also sent texts to witnesses using anonymous numbers telling them not to cooperate with police . Lastly that potential witnesses relocated from Nairobi to rural home in Nyanza and switched off their phones in fear of the accused reprisal. He opposed bail until civilians testify
The decision on bail review was that the witnesses had not testified and that the circumstances at the time of the earlier ruling still persist.
The main issues for determination of the present application are Whether threat of witness interference still persist and Whether stringent terms can be issued to prevent interference .
The prosecution’s case is that PW10’S having been declared hostile witness, his evidence was influenced and that it happened when the accused was in remand .
Witness interference was described in the case of Republic –Vs- Jaktan Mayende & 3 others as :-
“… Threats or improper approaches to witnesses although not visibly manifest, as long as they are aimed at influencing or compromising or terrifying a witness either not to give evidence, or to give schewd evidence, amount to interference with witnesses; an impediment to or perversion of the course of justice…if the interference is aimed at impeding or perverting the course of justice, and if it is so found, it is a justifiable reason to limit the right to liberty of the accused .”
The accused contends that there is no proof that PW10’S evidence was influenced and that he had a hand in it. Article 49 (h) is clear that the burden of proof is on the prosecution to prove compelling grounds, the grounds should not be speculative.
The court has already found threat of witness interference as a compelling reason to deny bond. The court also relied on the affidavit of CPL Gikundi the investigating officer filed in opposition of the first application for bail. The investigating officer affidavit also painted the picture of perceive threat and interference .
Further, the decision of Ogembo J was that the witnesses had not testified and change of circumstances could not be determined at that stage.
The burden of proof now vests on the applicant to prove that circumstances have changed over the period and that it would be safe to release him on bond. The court must consider the facts before it and make its determination judiciously.
I have considered the application and submissions made in court and the Pre-bail report.
Firstly, I find that contrary to the accused statement to the court on the desperate state of the children, the children are in the safe custody of the accused brother and also attend school .The children are of tender age and still traumatized following the death of their mother. The children also resided in the home which was the crime scene.
The accused states that if he is released he will reside at his ancestral home with his family, again making him come within reach of relatives and potential witnesses and the children.
Secondly, I note that the prosecution has not advised court whether remaining witnesses would be civilian and /or family members. Also whether the witnesses, who have not been mentioned in the prosecutions oppositions would be at risk.
So far, the deceased colleagues and her employer have testified. Expert witnesses and police officers have also given evidence and the body was identified by close relatives.
The accused brother testified and on turn of events, he was declared hostile witness following the prosecutions application under Sections 152-163 of the Evidence Act. This court found that the prosecution is entitled to have its own witness declared hostile where the witness after Pw10 gave witness that contradicted his written statement.
The accused has urged that the prosecution has not proved his participation or influence on the witness testimony.
Section 161 of the Evidence provides that:-
“The court may in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.’
The import of the evidence is that it is unreliable and may not inform a conviction unless it there evidence to support the allegation against an accused person. See the case of Mtune v Republic [2023] KEHC 17792 (KLR).
In Alowo –Vs- . Republic [1972] EA page 324, the East Africa Court of Appeal held that :-" The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible .”
From this findings, the evidence of a hostile witness does not have any connection to the accused right to bond .It should be considered at the end of the trial and care should be taken at the interlocutory stage not to pre-empt the trial.
The prosecution must demonstrate that the accused had/has a hand in his brother’s testimony. The burden is beyond reasonable doubt. The prosecution’s submissions are not substantiated of proof that the witness was influenced by his brother, the Accused person. However, it remains a fact that the witness was declared hostile witness as his evidence earlier was different from what was presented during trial but who influenced him or if he was influenced remains a mystery.
The accused submitted that he spent time in custody since plea taking. The age of the matter also dictates active steps of resolution of the matter and also allowing the accused constitutional right to bail where the threat cited no longer exist or can be mitigated.
Despite these findings favour the accused application, I still find that compelling reasons to exist at the advance stage of the trial.
At this stage, it is arguable that the strength of the evidence, the gravity of the charges and sentence pose risk of absconding. The main consideration of bail is whether the accused will turn up for trial if his application is allowed.
Strength of the prosecution case is a renowned compelling ground that can be considered at advanced stages of trial when the prosecution case has been disclosed or at the defence stage. It may lead to absconding and is a ground considered in the interest of justice to ensure the accused attends trial to its logical conclusion.
In the case of S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August 2017) , cited in Republic vs. Danson Mgunya & Another [2010] eKLR ., the court held that:
The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.
In Watoro vs. Republic [1991] KLR 220, it was held thus:
“The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody … the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question : it has happened before, and in similar cases…the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction…”
Stringent terms cannot prevent absconding or access to witnesses at the advanced stage of the case.
This is a family related matter and there is apprehension that the family members who may have not testified and shall await the confirmation and trial to proceed.
Republic v Peter Chege Mucheru [2018] eKLR , Kimondo J held,
“There is palpable anger the victim''s home. The victim''s Protection Act 2014 requires the views of victim be taken into account at this stage. I empathize with the accused. But I reached the conclusion that his safety is not guaranteed at the locus in quo. That to me is a compelling reason not to release the accused on bail. The application for bail is refused.”
The same feeling is seen from IOs report and Pre Bail Report.In the upshot, the application for bail review is unmerited.
RULING DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION AT NAIROBI THIS 22/9/2025
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