https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9559

Republic v Ade & another (Criminal Case 23 of 2019) [2026] KEHC 9559 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 9559 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Case 23 of 2019 JM Omido, J June 11, 2026 Between Republic Prosecution and Moses Otieno Ade 1st Accused Stephen Ochieng Kenye 2nd Accused Ruling 1.The Prosecution’s notice of motion dated 20th March, 2026 is expressed to be brought under Article 50(2)(f), Article 159 and Article 165(3)(a) of the Constitution, Section 206 of the Criminal Procedure Code and Section 9(1)(b) of the Victim Protection Act and seeks the following orders:a.That this Honourable Court be pleased to allow the hearing and/or proceedings in Criminal Case No. HCCRC 23 of 2019 to proceed in the absentia of the 1st accused person, should he not present himself at the trial or be otherwise apprehended.b.That this Honourable Court find that the 1st accused, having been granted bond in 2022, having attended court in 2023 and thereafter having absconded his court attendances in 2024 and repeatedly on 24th March, 2025, 7th April, 2025, 30th June, 2025, 29th July, 2025, 30th September, 2025 and 28th October, 2025, has by his deliberate conduct waived his right to be present during trial pursuant to Article 50(2)(f) of the Constitution.c.That the warrants of arrest issued against the 1st accused person do remain in force until his apprehension.d.That upon apprehension of the 1st accused person at any time in future, if he shall have been convicted, the sentence shall commence from the date of his apprehension.e.That this Honourable Court do issue any further orders it deems fit and just in the circumstances. 2.The grounds upon which the motion is premised are that this is a 2019 murder case registered as HCCRC No. 23 of 2019, which has remained pending primarily due to the absence of the 1st accused person, who was granted bond in 2022, attended court in 2023, but thereafter absconded court attendance beginning in 2024. He has also failed to attend court on multiple occasions in 2025 and 2026. 3.It is asserted in the grounds that multiple warrants of arrest have been issued against him, but he remains untraceable to date and efforts to apprehend him have been unsuccessful. 4.The grounds are further that the Investigating Officer has confirmed that the surety for the 1st accused is equally untraceable and that fraudulent documentation was used in securing the bond. 5.It is further contended that continued delay in the hearing and determination of this matter violates the rights of the witnesses, the victims’ family, the public interest and the rights of the 2nd accused, who has remained ready to proceed with the trial. 6.It is therefore urged that it is in the interests of justice that the matter proceeds without further delay in compliance with Article 50(2)(e) of the Constitution, which guarantees the right to have criminal proceedings concluded without unreasonable delay. 7.It is also contended that the deliberate absence and conduct of the 1st accused has rendered it impracticable for a joint trial to proceed, thereby necessitating the invocation of Article 50(2)(f) of the Constitution to enable the trial to proceed in his absence. 8.The application is supported by the affidavit of Police Constable Elijah Thotho, the investigating officer, sworn on 20th March, 2026. The officer deposes that the matter is a murder case in which the 1st accused, Moses Otieno Ade and the 2nd accused, Stephen Ochieng Kenye are jointly charged with murder contrary to Section 203 as read with Section 204 of the Penal Code, and that the case has remained pending for over six years primarily due to the absence of the 1st accused person. 9.He states that the 1st accused was granted bond by the court in 2022 on conditions including regular attendance, and that although he initially complied and attended court in 2023, he thereafter ceased attending court beginning in 2024 and has since absconded all subsequent scheduled court appearances, as a result of which warrants of arrest have been issued against him. 10.He states that despite extensive efforts to trace and apprehend the 1st accused, including visits to his last known address, inquiries with relatives and associates, liaison with other police stations and checks of police records and databases, the 1st accused remains untraceable and appears to have deliberately gone into hiding to evade justice. 11.The officer further deposes that in the course of attempting to execute the warrants, he sought to trace the surety who stood for the 1st accused, but was equally unable to trace him at the address provided in the bond documents. He states that investigations have revealed that the surety documents used to secure the release of the 1st accused on bond have been found to be fraudulent and falsified, including irregularities discovered upon verification of title deed Number North Ugenya/Ambira/1120, which was found not to exist as presented, and further that the alleged valuers’ office referred to in the valuation report does not exist at the stated location. 12.The officer further deposes that the continued absence of the 1st accused has caused significant delay in the hearing and determination of the matter, thereby prejudicing the rights of the deceased’s family, witnesses, the 2nd accused who has always attended court and has been ready to proceed with the trial, and the public interest in the administration of justice. 13.He further avers that the conduct of the 1st accused in absconding court after being granted bond demonstrates a deliberate intention to evade justice and frustrate the trial, and that by such conduct he has waived his right to be present during trial under Article 50(2)(f) of the Constitution. 14.The officer concludes that the circumstances of the case justify the application of the principle that an accused person who deliberately absconds waives the right to be present at trial, and that in the interests of justice and in compliance with Article 50(2)(e) of the Constitution requiring expeditious disposal of criminal proceedings, the case ought to proceed without further delay. 15.In urging the application, Ms. Muema, learned Prosecution Counsel, wholly relied on the affidavit of the investigating officer in support of the motion. She adopted the contents of the said affidavit as the basis of the application and made no additional submissions. 16.On the other hand, Mr. Johnson, learned Counsel for the 2nd accused person, indicated his support for the application, aligning himself with the position taken by the prosecution and confirming that he had no objection to the orders sought. 17.Upon considering the notice of motion, the affidavit in support, the positions taken by Ms. Muema and Mr. Johnson and the circumstances of the case, the Court is of the view that the issues for determination are firstly, whether the conduct of the 1st accused, including absconding after bond and failure to attend court despite repeated warrants of arrest, amounts to a waiver of his right to be present during trial within the meaning of Article 50(2)(f) of the Constitution and secondly, whether the Court should grant orders permitting the matter to proceed in the absence of the 1st accused person. 18.It is not in dispute that the 1st accused person was admitted to bond, initially attended court, but thereafter absconded and has remained untraceable despite multiple warrants of arrest issued by this Court since 2024. 19.The record further shows a consistent pattern of non-attendance on several scheduled hearing dates in 2025 and that even Counsel for the 1st accused person has on several occasions failed to attend court despite being duly notified, thereby further frustrating the expeditious disposal of the matter. 20.The Court takes judicial notice that such persistent non-attendance, both by the accused and his Counsel, has materially impeded the progress of this trial. 21.The right of an accused person to be present at trial is a fundamental component of the right to a fair hearing under Article 50 of the Constitution. However, that right is not absolute and may, in appropriate circumstances, be curtailed where an accused person by his own conduct deliberately absents himself from court proceedings. 22.While the right to a fair trial is sacrosanct, it must be balanced against the broader interests of justice and the orderly conduct of proceedings. The constitutional guarantee to a fair trial includes the right to have proceedings concluded without unreasonable delay and that the justice system must guard against undue delay that prejudices both the accused and other stakeholders in the trial process. 23.In the present case, the Court is satisfied that the 1st accused person, having been granted bond and having initially participated in the proceedings, subsequently absconded and has taken no steps to present himself before Court despite repeated warrants of arrest. 24.His continued absence, coupled with the unavailability of his surety and the fraudulent nature of the bond documentation as disclosed by the investigating officer, points to a deliberate attempt to evade the course of justice. 25.The Court is further persuaded that the continued suspension of proceedings on account of his absence is prejudicial not only to the 2nd accused person, who is ready to proceed, but also to witnesses, the family of the deceased and the public interest in the expeditious determination of criminal trials. 26.In light of the foregoing, the court finds that the conduct of the 1st accused person amounts to a waiver of his right to be present during trial within the contemplation of Article 50(2)(f) of the Constitution. The Court is also satisfied that the requirements of Article 50(2)(e) are engaged in this case, and that the continued delay occasioned by the 1st accused’s absence is unreasonable and unjustified. 27.Accordingly, the Court finds merit in the application and allows the notice of motion. The Court hereby directs that the trial shall proceed in the absence of the 1st accused person, subject to his right to rejoin the proceedings should he be apprehended at any stage of the trial. It is so ordered. DELIVERED, DATED & SIGNED THIS 11TH DAY OF JUNE, 2026.JOE M. OMIDOJUDGE1ST ACCUSED: Absent.2ND ACCUSED: Present.FOR 2ND ACCUSED: Mr. Johson.FOR STATE: Ms. Muema.Court: Mention for further directions on 7th July, 2026.JOE M. OMIDOJUDGE