https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12858

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KILGORIS CRIMINAL CASE NO. E007 OF 2026** **(CORAM: HON. CHARLES M. KARIUKI – J.)** **REPUBLIC .................................................................................................... PROSECUTOR** **VERSUS** **BRIAN KIPNGENO KORIR ........................................................................ 1ST ACCUSED** **GILBERT KIPKIRUI BOSUPEN .................................................................2ND ACCUSED** **RULING ON BOND** 1. The 1st accused, Brian Kipngeno Korir, and the 2nd accused, Gilbert Kipkirui Bosupen, are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2. Both accused persons pleaded not guilty to the charge and applied to be released on bond pending trial. 3. The prosecution opposed their release on bond. In support of its objection, the prosecution relied upon the affidavit sworn by the Investigating Officer and the pre-bail reports prepared by the Probation and Aftercare Service. **The prosecution’s position:** 1. The prosecution contended that, if released, the accused persons were likely to interfere with prosecution witnesses. It was further argued that their release into the same locality where the witnesses reside would threaten the safety and security of those witnesses and possibly disturb public order. 2. The Probation Officer expressed concern that the prevailing circumstances within the locality were not conducive to the safe release of the accused persons. The report also indicated that no persons were presently willing to stand surety for them, thereby presenting a practical difficulty regarding their supervision and compliance with the bond terms. 3. Consequently, the Probation Office recommended that the bond applications be declined at this stage, subject to the discretion of the Court. **Issue for determination:** 1. The sole issue for determination is whether the prosecution has demonstrated compelling reasons, within the meaning of Article 49(1)(h) of the Constitution, to justify the denial of bond to either or both accused persons. Analysis and determination 1. 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.”* 1. The right to bond is therefore constitutionally guaranteed, but it is not absolute. The Court may limit that right where the prosecution establishes compelling reasons. The burden of demonstrating such reasons rests upon the prosecution and must be discharged on a balance of probabilities. 2. In ***Michael Juma Oyamo & Another v Republic [2019] eKLR,*** the Court of Appeal held that compelling reasons must be forceful, convincing, real and supported by cogent evidence. Mere allegations, speculation or apprehension unsupported by relevant material cannot justify the denial of an accused person’s constitutional right to bond. 3. Similarly, in ***Republic v Joktan Mayende & 3 Others [2012] eKLR****,* the Court observed that bail should not be denied on flimsy grounds but upon real and cogent grounds meeting the high constitutional threshold. 4. Section 123A of the Criminal Procedure Code and the Judiciary’s Bail and Bond Policy Guidelines identify relevant considerations in determining a bond application. They include the likelihood that an accused person will fail to attend trial, interfere with witnesses or evidence, endanger the safety of victims or members of the public, or otherwise obstruct the administration of justice. 5. A pre-bail report assists the Court by providing information concerning the accused person’s social circumstances, community ties, the views of victims and the prevailing situation within the community. Such a report is advisory and does not bind the Court. The ultimate determination rests exclusively with the Court: See ***Republic v Otwori & Another [2026] KEHC 8951 (KLR)***. 6. I have considered the circumstances of each accused person separately, notwithstanding that they are jointly charged. I have also considered their constitutional entitlement to the presumption of innocence under Article 50(2)(a) of the Constitution. Denial of bond must not be employed as anticipatory punishment. 7. The main concern raised by the prosecution relates to the likelihood of interference with prosecution witnesses. Witness interference includes threatening, intimidating, inducing, compromising or improperly approaching a witness with the intention of preventing that witness from testifying freely and truthfully. 8. The administration of justice depends upon witnesses being able to give their evidence without fear, intimidation or improper influence. Where the Court is satisfied that there is a real and demonstrable likelihood of interference, the protection of witnesses and the integrity of the trial constitute compelling reasons for limiting the right to bond. 9. In the present case, the Investigating Officer’s affidavit and the Probation Officer’s report must be considered together. They disclose that the accused persons and material prosecution witnesses come from or reside within the same locality. The reports express legitimate concerns that releasing the accused persons into that locality before the material witnesses testify may expose those witnesses to intimidation or improper influence. 10. The reports further indicate that tension remains within the locality and that the immediate release of the accused persons may occasion a breach of the peace. Although public hostility or community tension cannot, without more, automatically justify the denial of bond, the Court must take reasonable measures to protect the accused persons, witnesses and the wider public where the risk is shown to be real and proximate. 11. The absence of persons presently willing to stand surety is not, by itself, a compelling reason for denying bond. The suitability and sufficiency of sureties ordinarily arise after bond has been granted. In this matter, however, that consideration reinforces the practical concerns disclosed in the reports regarding the proposed places of residence and effective supervision of the accused persons if released. 12. Having evaluated the material before me, I am satisfied that the prosecution has, at this stage, established a real likelihood of interference with prosecution witnesses and a corresponding risk to the integrity of the trial. These constitute compelling reasons within the meaning of Article 49(1)(h) of the Constitution. 13. Nevertheless, compelling reasons are not necessarily permanent. The circumstances supporting the denial of bond may change as the trial progresses, particularly after the vulnerable or material witnesses have testified. The accused persons retain the right to renew their applications if there is a material change of circumstances. **Disposition** 1. Accordingly, I make the following orders: 2. **The applications by the 1st accused, Brian Kipngeno Korir, and the 2nd accused, Gilbert Kipkirui Bosupen, for release on bond pending trial are declined at this stage.** 3. **The accused persons shall remain in lawful custody pending trial or until further orders of this Court.** 4. **The prosecution shall ensure that the trial is accorded priority and that the material and vulnerable witnesses are called without unnecessary delay.** 5. **Each accused person shall be at liberty to renew his application for bond after the material witnesses have testified or upon demonstrating a material change of circumstances.** 6. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK VIA MICROSOFT TEAMS THIS 14TH DAY OF AUGUST 2026.** **........................................................ CHARLES M. KARIUKI JUDGE**