https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10898

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA** **HIGH COURT CRIMINAL MISC. APPLICATION NO. E087 OF 2026** **DANCUN LIKAMI OTUNGA………………………...……………………….1ST APPLICANT MELVIN NZAKA………………………………………………………………2ND APPLICANT** **VERSUS** **REPUBLIC………………………………………………………………………. RESPONDENT** **RULING** 1. The applicants have moved this Court by a Chamber Summons brought under Articles 49(1)(h), 50 and 165(6) & (7) of the Constitution and Sections 123, 362 and 364 of the Criminal Procedure Code seeking revision of the ruling delivered by the Senior Resident Magistrate at the Chief Magistrate’s Court at Kakamega on 7th May 2026 in Criminal Case No. E707 of 2026, by which the trial court declined to admit them to bond pending trial. 2. The record shows that the applicants are jointly charged before the Chief Magistrate’s Court in Criminal Case No. E707 of 2026 with the offence of robbery with violence contrary to section 296(2) of the Penal Code. They pleaded not guilty to the charge on 15th April 2026. 3. The application is supported by the affidavit of the 1st applicant, Duncan Likami Otunga, sworn on behalf of both applicants. They depose that although they had earlier been released on police cash bail of Kshs.5,000/=, they were never informed of the date fixed for plea taking on 26th March 2026. 4. Consequently, they failed to attend court on that date, warrants of arrest were issued, and they were subsequently arrested and presented before court on 15th April 2026 when they pleaded not guilty. 5. The applicants further contend that the prosecution did not oppose their release on bond nor place before the trial court any compelling reasons contemplated under Article 49(1)(h) of the Constitution. 6. They state that the trial court, on its own motion, ordered the preparation of pre-bail reports and subsequently relied upon those reports together with their earlier absence from court in declining bond. 7. They argue that they were condemned unheard because they were never afforded an opportunity to explain their absence from court before adverse findings were made against them. 8. The applicants also challenge the objectivity of the pre-bail reports, contending that they were prepared without their meaningful participation and that one of the persons interviewed, the area Assistant Chief, is a prosecution witness who allegedly has a personal dispute with their family. 9. They further depose that two of their co-accused persons facing the same charge have since been admitted to bond notwithstanding that they were arrested under similar circumstances. 10. The application was not opposed by the respondent. **ISSUE FOR DETERMINATION** 1. The sole issue for determination is whether this Court should interfere with the trial court’s exercise of discretion and revise the order denying the applicants bond pending trial. **ANALYSIS AND DETERMINATION** 1. The jurisdiction of this Court under Sections 362 and 364 of the Criminal Procedure Code is supervisory. The Court is empowered to examine the record of subordinate courts for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and the regularity of the proceedings. 2. This Court is mindful that the grant or denial of bond is ordinarily a matter of judicial discretion vested in the trial court. The revisionary jurisdiction of the High Court is therefore not exercised merely because another court might have reached a different conclusion. It is invoked where the subordinate court acted on wrong principles, considered irrelevant matters, failed to consider relevant matters, or made an order that is incorrect, illegal or improper within the meaning of Sections 362 and 364 of the Criminal Procedure Code. 3. 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.”*** 1. . The burden rests upon the prosecution to demonstrate the existence of compelling reasons justifying denial of bond. 2. In **Republic v Danson Mgunya & Another [2010] eKLR*,*** the Court held that compelling reasons must be established by credible evidence and not by speculation or conjecture. 3. Likewise, in **Republic v Pascal Ochieng Lawrence [2014] eKLR,** the Court observed that under the Constitution the burden shifted from the accused person to the State to justify continued detention and identified the relevant considerations to include the likelihood of attendance at trial, interference with witnesses, protection of the accused, security of the community, the seriousness of the offence and, where appropriate, the strength of the prosecution case. 4. The offence facing the applicants is undoubtedly serious and carries severe penal consequences upon conviction. However, the seriousness of the charge, standing alone, does not constitute a compelling reason for denial of bond. The prosecution must still demonstrate, through evidence placed before the court, why the constitutional right to bond should be limited in the particular circumstances of the case. 5. The record of the subordinate court shows that immediately after plea was taken on 15th April 2026, the prosecution requested that a pre-bail report be prepared. The prosecution did not place before the court any specific factual basis demonstrating that the applicants were likely to abscond, interfere with witnesses or otherwise prejudice the administration of justice. 6. There was nothing improper in the trial court directing that pre-bail reports be prepared. A trial court is entitled to call for such reports on its own motion where it considers them necessary to assist in the proper exercise of its discretion. A pre-bail report, however, is only one of the factors to be considered. It does not by itself amount to proof of compelling reasons, and the ultimate question remains whether all the material placed before the court establishes sufficient grounds to justify limitation of the constitutional right to liberty. 7. The learned trial magistrate eventually declined bond principally because the pre-bail reports were negative, the complainant and members of the community were opposed to the applicants’ release on security grounds, and because the applicants had earlier been released on police cash bail but failed to attend court on 26th March 2026. 8. As regards community hostility, while the views of victims and the community are relevant considerations in preparing a pre-bail report, they cannot by themselves constitute compelling reasons for denial of bond unless supported by objective material demonstrating that release of the accused will genuinely jeopardize public safety or the due administration of justice. 9. In **Republic v Dwight Sagaray & 4 Others [2013] eKLR**, the Court held that allegations such as interference with witnesses must be supported by credible evidence and not mere apprehension. 10. With regard to the applicants’ failure to attend court on 26th March 2026, this Court notes that the proceedings merely record that the applicants were absent, whereupon warrants of arrest were issued and the police cash bail forfeited. When they were subsequently arrested and presented before court on 15th April 2026, the trial court did not inquire into the circumstances surrounding their absence nor invite them to explain whether they had been notified of the plea date or had deliberately absconded. 11. The applicants have now deponed on oath that they were never informed of the date fixed for plea taking and believed they would be recalled by the police after attempts at reconciliation with the complainant. 12. Before the applicants’ earlier absence was relied upon as a basis for denying bond, they were not afforded an opportunity to explain the circumstances surrounding that absence. Procedural fairness required that they be heard on that issue before an adverse inference was drawn against them. 13. The Court also notes that the applicants aver that they were arrested at their residence and had not gone into hiding. While that fact does not conclusively establish that they were not flight risks, it was nevertheless a relevant consideration that ought to have been weighed together with any explanation they might have offered. 14. The applicants have further challenged the preparation of the pre-bail reports on the basis that one of the interviewees, the area Assistant Chief, is a prosecution witness who allegedly has a personal dispute with their family and that they were not meaningfully involved in the preparation of the reports. 15. This Court is unable, on the material before it, to make definitive findings on those allegations. Nonetheless, where liberty is at stake, courts must exercise caution in relying exclusively on adverse opinions contained in a pre-bail report without considering the totality of the circumstances. 16. The applicants have also deponed, without contradiction, that two of their co-accused persons facing the same charge have since been admitted to bond. Although every application for bond must be determined on its own merits, consistency in the exercise of judicial discretion is an important consideration unless there exist distinguishing circumstances justifying differential treatment. 17. Upon considering the entire record, this Court is persuaded that the learned trial magistrate exercised discretion on the basis of matters that had not been fully interrogated and, in particular, relied upon the applicants’ earlier absence from court without first according them an opportunity to explain the circumstances leading to that absence. 18. In the absence of demonstrated compelling reasons supported by evidence, the constitutional presumption in favour of release on bond ought not to have been displaced. 19. Accordingly, this Court finds that the order denying bond was improper and calls for intervention in the exercise of this Court’s revisionary jurisdiction. Accordingly; 1. The application is hereby allowed. 2. The ruling delivered by the Senior Resident Magistrate on 7th May 2026 in Kakamega Chief Magistrate’s Criminal Case No. E707 of 2026 denying the applicants bond is hereby revised and set aside. 3. The applicants shall be admitted to bond pending trial on reasonable terms to be fixed by the trial court, taking into account all the circumstances of the case and the constitutional principles governing the right to bail and bond. 4. For the avoidance of doubt, the trial court shall remain at liberty to impose such reasonable conditions as may be necessary to secure the attendance of the applicants at trial, safeguard the integrity of the proceedings, and ensure the protection of witnesses. 5. The Deputy Registrar shall forthwith transmit a certified copy of this ruling to the Chief Magistrate’s Court at Kakamega for compliance. 6. Right of Appeal 14 days explained. 7. Mention 21.7.2026 before trial court. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Ms. Emily for DPP present online. Applicants absent. Ms. Namuye for Applicants absent though aware of the ruling. Court Assistant to upload in the CTS.