https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11055

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CRIMINAL CASE NO. E034 OF 2025** **REPUBLIC…………………………………..PROSECUTION COUNSEL** **VERSUS** **ERICK ODHIAMBO AMALA….………………………….1ST ACCUSED** **EMMANUEL OCHIENG OMONDI…………………….2ND ACCUSED** **RULING** 1. **Erick Odhiambo Amala** (hereinafter referred to as “the 1st accused”) and **Emmanuel Ochieng Omondi** (hereinafter referred to as “the 2nd accused”) 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.* 2. The prosecution has moved this court seeking an order that the 2nd accused person be denied bond pending trial, notwithstanding the right to be released on bond or bail guaranteed under *Article 49(1)(h)* of the Constitution. 3. The application is founded on the affidavit sworn on 30th October, 2025 by the investigating officer, **Corporal Naboth Ondoro,** in which the prosecution sets out what it considers to be compelling reasons why the 2nd accused should not be admitted to bond. 4. In his affidavit, the investigating officer deposes that he opposes the grant of bond to both accused persons and advances what he considers to be compelling reasons for their continued detention pending trial. 5. The investigating officer deposes that the accused persons do not have known permanent residences within the jurisdiction of the court or any other verifiable fixed places of abode. Consequently, he contends that there is a real likelihood that they may abscond if released on bond, thereby frustrating the due administration of justice. 6. He further deposes that the 2nd accused remained at large for more than three years before he was eventually traced, arrested and presented before the court. He adds that warrants of arrest were issued against the 2nd accused on three occasions after he absconded from court and that the surety who had secured his release also disappeared, prompting the issuance of a warrant of arrest against the surety. 7. According to the investigating officer, these circumstances demonstrate that the 2nd accused cannot be trusted to comply with future bond terms. 8. As regards the 1st accused, the investigating officer deposes that a warrant of arrest was issued against him after he failed to attend court on two occasions. He further states that the case has remained pending since the year 2020 largely because the 1st accused was at large for over three years, and expresses the apprehension that releasing him on bond would increase the likelihood of his absconding once again. 9. The investigating officer also deposes that the accused persons are likely to face hostility from members of the community where the alleged offence was committed, as tensions arising from the incident are said to remain high. He avers that their safety and well-being cannot be guaranteed if they are released and that there exists a substantial risk that they may be subjected to mob violence or other forms of harm. 10. Lastly, the investigating officer deposes that the offence with which the accused persons are charged has generated considerable public outrage and unrest. He contends that their release on bond is likely to undermine public order and diminish public confidence in the administration of justice. 11. For those reasons, he urges the court to decline the application for bond in order to prevent the risk of absconding, safeguard the accused persons’ safety, and preserve public peace and order pending the conclusion of the trial. 12. The prosecution’s application is resisted by both accused persons, who to that end filed their respective replying affidavits that they swore on 28th October, 2025. 13. In his affidavit, the 1st accused deposes that he opposes the prosecution’s application for the denial of bond and denies the allegation that he is a flight risk or that he deliberately absconded from court. He avers that his failure to attend court for approximately two years was neither wilful nor intended to defeat the course of justice. 14. The 1st accused explains that his absence from court resulted from circumstances beyond his control, asserting that his then surety failed to notify him of the scheduled court dates despite his regular efforts to communicate with the surety and obtain updates on the progress of the case. 15. He further deposes that throughout the period of his absence he remained within the jurisdiction of this court, had no intention of interfering with witnesses or the prosecution’s evidence, and was not a flight risk. 16. He states that he has a known permanent residence at Seme and enjoys strong community ties, which, in his view, sufficiently demonstrate that he is unlikely to abscond if admitted to bond. 17. The 1st accused further contends that the prosecution has failed to establish compelling reasons within the meaning of *Article 49(1)(h)* of the *Constitution* and the *Bail and Bond Policy Guidelines* to justify the denial of bond. He maintains that the burden of proving such reasons rests upon the prosecution and argues that mere allegations cannot lawfully curtail his constitutional right to liberty pending trial. 18. Lastly, the 1st accused deposes that he is ready and willing to comply with any reasonable bond terms that the court may impose, including the provision of new and reliable sureties to secure his attendance at all future court proceedings. 19. He accordingly urges the court to disregard the prosecution’s allegations, dismiss the application, and admit him to bond on reasonable terms. 20. On his part, the 2nd accused deposes in his affidavit that he opposes the prosecution’s application for the denial of bond and denies the allegation that he is a flight risk or that he deliberately absconded from court. He avers that his failure to attend court for approximately two years was neither intentional nor an attempt to evade the court process. 21. The 2nd accused explains that his absence was occasioned by circumstances beyond his control, stating that his then surety failed to notify him of the scheduled court dates despite his regular efforts to contact the surety and obtain updates on the progress of the case. He further deposes that, during a substantial part of that period, his child was gravely ill and required his constant care and attention, including frequent hospital visits, in support of which he has annexed medical records to his affidavit. 22. He further deposes that throughout the period of his absence he remained within the jurisdiction of this court and never intended to interfere with witnesses or the prosecution’s evidence. He asserts that he has a known permanent residence at Seme and strong community ties, circumstances which, according to him, negate the prosecution’s contention that he is likely to abscond if released on bond. 23. The 2nd accused further contends that the prosecution has failed to establish compelling reasons within the meaning of *Article 49(1)(h)* of the *Constitution* and the *Bail and Bond Policy Guidelines* to justify the denial of bond. 24. He maintains that the burden of proving such compelling reasons rests upon the prosecution and argues that the allegations relied upon are unsupported by evidence and are therefore insufficient to curtail his constitutional right to liberty pending trial. 25. Lastly, the 2nd accused deposes that he is ready and willing to comply with any conditions that the court may impose to secure his attendance throughout the trial. In particular, he undertakes to provide new and reliable sureties, report to the nearest police station as may be directed, refrain from contacting or communicating with prosecution witnesses, and reside at a specific address known to the investigating officer. 26. He therefore urges the court to dismiss the prosecution's application and admit him to bond on reasonable terms. 27. Having carefully considered the prosecution’s application, the affidavits filed by the parties, and the applicable law, I am of the view that the single issue that arises for determination is whether the prosecution has established compelling reasons to warrant the denial of bond to the two accused persons. 28. *Article 49(1)(h)* of the *Constitution* guarantees every arrested person 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. 29. The right to bail is therefore a constitutional right, but it is not absolute. The *Constitution* itself recognizes that where compelling reasons are established, a court may lawfully decline to admit an accused person to bond. 30. The burden of proving the existence of compelling reasons rests squarely upon the prosecution. It is not for an accused person to demonstrate why he should be released on bond. Rather, once an accused invokes the constitutional right under *Article 49(1)(h),* it is incumbent upon the State to satisfy the court that there exist compelling reasons warranting the limitation of that right. 31. The standard of proof is not proof beyond reasonable doubt, as the court is not determining the guilt or innocence of the accused persons. Instead, the prosecution must establish the alleged compelling reasons on a balance of probabilities. 32. The court must therefore assess the evidence placed before it and determine whether it is more probable than not that the grounds relied upon constitute compelling reasons justifying the denial of bond. 33. The principal ground advanced by the prosecution is that both accused persons are flight risks. That assertion is not founded on mere apprehension or speculation. It is supported by the undisputed history of these proceedings. 34. It is common ground that both accused persons had previously been admitted to bond by this court. The privilege of bond was therefore extended to them, subject to the expectation that they would faithfully honour the terms of their release and attend court whenever required. They, however, failed to do so. 35. The material before the court shows that each of the accused persons absconded after being released on bond. Warrants of arrest were issued against them, and they remained at large for a considerable period before they were eventually traced, arrested and brought back before the court. 36. Indeed, according to the investigating officer, each accused remained at large for over three years. In the case of the 2nd accused, warrants of arrest were issued on three separate occasions, while even his surety disappeared, necessitating the issuance of a warrant against the surety. These averments have not been effectively controverted. 37. The explanations offered by the accused persons do not persuade the court otherwise. Both seek to attribute their prolonged absence to the alleged failure by their respective sureties to notify them of the hearing dates. The 2nd accused additionally states that he had to care for his sick child during part of the period in question. 38. Those explanations cannot avail the accused persons. The obligation to attend court is a personal obligation imposed upon every accused person released on bond. A surety merely guarantees the accused person’s attendance. The surety does not assume or replace the accused person’s duty to keep track of the proceedings or to present himself before the court as required. 39. An accused person cannot escape responsibility for breaching the terms of bond by shifting the blame to his surety. If indeed they were interested in attending court, nothing prevented either of them from making inquiries from their advocates, the court registry, or the investigating officer regarding the progress of the case and the dates fixed for hearing. 40. Equally unpersuasive is the explanation by the 2nd accused that his child’s illness contributed to his absence. While the court does not doubt that caring for an ailing child is a serious responsibility, that circumstance could not justify remaining absent from court for such a prolonged period without notifying the court or seeking appropriate directions. No attempt was made to regularize his absence or communicate with the court throughout the period he remained at large. 41. The conduct of both accused persons speaks louder than their present assurances. They were once trusted with the benefit of bond and failed to honour that trust. Their previous conduct demonstrates a deliberate disregard of the conditions upon which they were released and significantly undermines the credibility of their present undertaking that they will faithfully attend court if released once again. 42. In matters of bond, past conduct is often the best indicator of future conduct. Where an accused person has previously absconded after being granted bond and has only returned to court upon arrest, the court is entitled to infer that there exists a real and substantial likelihood that the accused may again fail to attend trial if released. Courts are not required to ignore such history merely because an accused now expresses willingness to comply with bond terms. 43. I therefore find that the prosecution has discharged its burden of proving, on a balance of probabilities, that both accused persons present a substantial flight risk. That finding alone constitutes a compelling reason within the meaning of *Article 49(1)(h)* of the *Constitution* to warrant the denial of bond. 44. Having reached that conclusion, it is unnecessary to make definitive findings on the other grounds advanced by the prosecution relating to public order and the safety of the accused persons. 45. In the result, I find that the prosecution has established compelling reasons to justify the continued detention of both the 1st and the 2nd accused persons pending the hearing and determination of this case. 46. Consequently, the prosecution’s application succeeds. Bond is hereby denied to both accused persons. They shall remain in custody pending the hearing and determination of this case or until further orders of this court. 47. It is so ordered. DELIVERED (virtually), SIGNED & DATED this 9th day of July, 2026. **JOE M. OMIDO** **JUDGE** ACCUSED: Both present. PROSECUTION COUNSEL: **Ms. Muema.** DEFENCE COUNSEL: COURT ASSISTANT: **Mr. Ngoge** & **Mr. Juma.**