https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8290

Republic v Mayone (Criminal Case E007 of 2026) [2026] KEHC 8290 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8290 (KLR) Republic of Kenya In the High Court at Narok Criminal Case E007 of 2026 CM Kariuki, J June 12, 2026 Between Republic Prosecutor and David Mantuke Mayone Accused Ruling A. Introduction 1.The accused person, David Matunke Mayone, is charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. 2.The particulars of the charge are that on 19th May 2026 at Maji Moto Sublocation, Osupuko Division, Narok South Sub-County within Narok County, jointly with others not before the court, he murdered Koinet Sankale. 3.Upon taking a plea on 4th June 2026, the accused pleaded not guilty. Through learned counsel, Mr Masikonde, Mr Onduso, Ms Lepore, and Mr Ezekiel, he applied for release on bond pending trial pursuant to Article 49(1)(h) of the Constitution. 4.The application was opposed by the victim's representatives and subsequently by an affidavit sworn by No. 101969 PC William Ngugi, the Investigating Officer, on 9th June 2026. The court also considered the Victim Impact Statements dated 4th June 2026, made by Musere Ole Sankale, the deceased's brother, and dated 11.6.2026, made by Shadrack Kimorgo, who describes himself as a neighbour of the deceased. 5.Upon hearing all parties, the court directed that a situational report be filed through an affidavit by the Investigating Officer together with a victim assessment report before determination of the bond application. B. Parties' Submissions 6.Upon taking plea, the accused person immediately applied to be admitted to bond pending trial pursuant to Article 49(1)(h) of the Constitution. Learned counsel Mr Masikonde, assisted by Ms Lepore, Mr Onduso, and Mr Ezekiel, submitted that bond is a constitutional right and that the burden rested upon the prosecution to demonstrate compelling reasons warranting denial thereof. 7.Counsel argued that no affidavit had been filed by the Investigating Officer opposing bond and that the only material then before the court was the victim assessment report, which did not identify any witness likely to be interfered with by the accused. It was submitted that the accused voluntarily presented himself to the police and was arrested on 20th May 2026 when he attended to record a statement. Counsel further submitted that the accused had fixed residences both within and outside Maji Moto, was a family man with strong family ties, owned immovable properties within the jurisdiction, and was therefore not a flight risk. 8.The defence further submitted that the accused was a former Chairman of Majimoto Group Ranch and an aspiring political leader within Narok South Constituency, circumstances which demonstrated his rootedness within the community and militated against any likelihood of absconding. Counsel urged the court to uphold the constitutional presumption of innocence under Article 50(2)(a) of the Constitution and to admit the accused to bond on such terms as the court deemed fit. 9.In support of the application, reliance was placed on Republic v Dwight Sagaray & 4 Others [2013] eKLR, where the court held that allegations of witness interference must be supported by cogent evidence, and Republic v Johnstone Kayesi & 4 Others [2012] eKLR, where the court observed that compelling reasons must be forceful, convincing and capable of demonstrating why an accused person ought not to be released on bond. 10.Mr Ezekiel associated himself with the submissions by Mr Masikonde and emphasised that no compelling reasons had been demonstrated. Ms Lepore similarly submitted that the victims were unlikely to suffer any prejudice if the accused were released on bond, and that the victims' rights could be adequately protected through appropriate bond conditions. 11.Learned Prosecution Counsel, Ms Kerubo, informed the court that the prosecution had not filed an affidavit opposing bond and expressly stated that it had no compelling reasons to oppose the application. Nevertheless, counsel urged the court to consider the contents of the victim impact assessment report and exercise its discretion judiciously. Mr Wandera, appearing alongside the prosecution, reiterated that although bond is a constitutional right, the court ought to take into account the victim impact assessment and the concerns raised therein. 12.The application was opposed by counsel holding a watching brief for the victims. Mr Oyori submitted that the deceased's family and members of the local community remained traumatised by the incident. He emphasised the gravity of the charge, noting that the deceased allegedly died after being shot with an arrow. Counsel argued that the court should consider the possibility of witness interference and the prevailing security situation before determining the application. Reliance was placed on Republic v John Mayende & 3 Others [2012] eKLR, in which the court considered the likelihood of witness interference and public security concerns when determining a bail application. Counsel further referred to Republic v Dwight Sagaray & 4 Others [2013] eKLR and urged the court to safeguard the integrity of the trial process. 13.Mr Dikirr, also appearing for the victims, submitted that there had been significant tension during previous court appearances and contended that victims were not passive participants in criminal proceedings. He urged the court to obtain a probation report before rendering its decision to ascertain the prevailing circumstances on the ground and assess the risk of witness interference. 14.Mrs Muhasi, appearing for the victims, referred the court to Petition No. E001 of 2026 and contended that there had previously been concerns regarding the accused's attendance before court. Counsel argued that the court ought to balance the rights of the accused against those of the victims and the wider community. She submitted that a pre-bail report was necessary to assess the prevailing security situation, the accused's multiple residences, and his influence within the community. Counsel relied on Articles 24, 27 and 49 of the Constitution and cited the Supreme Court decisions in Ahmed Abolfathi Mohammed & Another v Republic [2018] eKLR and Francis Karioko Muruatetu & Another v Republic [2017] eKLR, urging the court to consider the interests of victims and public safety before determining the application. He further proposed that, if bond were granted, conditions be imposed restricting the accused's access to the Maji Moto area. 15.In response, Mr Onduso submitted that neither the victim impact statement nor the oral submissions from the victims' representatives constituted evidence of witness interference. Counsel argued that no witness had been identified as having been threatened by the accused and that the Investigating Officer had filed no affidavit at that stage. He maintained that there was no legal basis for delaying the determination of the bond application and reiterated that the accused remained presumed innocent until proven guilty. 16.Mr Munyua further submitted that although victims have participatory rights under the Victim Protection Act, such rights do not override the constitutional rights of an accused person or the prosecutorial mandate vested in the Office of the Director of Public Prosecutions. Counsel relied on the Supreme Court decision in Joseph Lendrix Waswa v Republic [2020] eKLR, where the court affirmed the participatory role of victims in criminal proceedings while emphasising that such participation must not prejudice the rights of an accused person. Counsel argued that continued detention of the accused solely based on the victims' apprehensions would be unconstitutional. 17.In a brief rejoinder, Mr Masikonde submitted that the opposition to bond had shifted from an outright objection to a request for a probation report and suggested bond conditions. He argued that the victims' representatives were effectively seeking to prolong the accused's pre-trial detention without demonstrating compelling reasons. Counsel therefore urged the court to admit the accused to bond pending trial 18.Having heard all parties, the court observed that the issues raised concerning witness interference, public security, victims' concerns, and the safety of the accused were substantial and required further inquiry. The court consequently directed that a probation report and an affidavit from the Investigating Officer be filed, together with the relevant witness bundles, before a final determination on the bond application could be made. Thus, the court took note of the availability of the PBR dated 10.6.2026, the victim impact statement dated 11.6.2026 by Shadrack Kimorgo, and the hard-copy submissions by Munyua and Associates in favour of the bond application. C. Issues For Determination 19.Having considered the application, the affidavit of the Investigating Officer, the Victim Impact Statements, the submissions by counsels for the accused, the prosecution, and counsel holding watching brief for the victims, the following issue arises for determination:i.Whether the prosecution and the victims have established compelling reasons within the meaning of Article 49(1)(h) of the Constitution sufficient to warrant denial of bond pending trial. D. Analysis And Determination 20.The right to bail and bond is a constitutional right guaranteed under Article 49(1)(h) of the Constitution of Kenya, 2010, which 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.” 21.The constitutional position is therefore that liberty is the rule and detention pending trial is the exception. An accused person enjoys the presumption of innocence until proved guilty in accordance with Article 50(2)(a) of the Constitution. 22.In Republic v Danson Mgunya & Another [2010] eKLR, Ibrahim J. (as he then was) observed:“The right to bail is a constitutional right and can only be limited where compelling reasons have been demonstrated.” 23.Similarly, in Republic v Richard David Alden [2016] eKLR, the Court held that the burden of demonstrating compelling reasons rests upon the prosecution and such reasons must be supported by evidence. 24.The Judiciary Bail and Bond Policy Guidelines, 2015, define compelling reasons as reasons that are forceful and convincing enough to justify limitation of the constitutional right to liberty. Relevant considerations include the likelihood of absconding, interference with witnesses, protection of victims, preservation of public order, protection of the accused person, and the overall interests of justice. 25.The victims and the Investigating Officer oppose the grant of bond principally because the accused is a person of influence within the Maji Moto area; that the offence arose from a long-standing land dispute; that tension remains high within the locality; that witnesses fear intimidation; and that the release of the accused may lead to breach of the peace and compromise public security. 26.The court has carefully examined the affidavit sworn by PC William Ngugi and the Victim Impact Statement by Musere Ole Sankale. The court appreciates the grief, trauma, and anxiety suffered by the deceased's family and the community following the death of the deceased. The rights of victims are constitutionally protected under Article 50(9) of the Constitution and Sections 4, 9 and 12 of the Victim Protection Act, No. 17 of 2014. 27.The Supreme Court in Joseph Lendrix Waswa v Republic [2020] eKLR recognised the participatory rights of victims in criminal proceedings and emphasised that courts must take into account victims' legitimate concerns. However, the Court emphasised that victims' rights must be balanced against the constitutional rights of the accused. 28.The principal concern raised by the victims and the Investigating Officer is the likelihood of witness interference. The Investigating Officer identifies four prospective witnesses, namely Anatola Lanoi, Shadrack Kimorgo, Ritei Merku, and Simon Kool, and states that they fear testifying should the accused be released on bond. 29.While the court takes these concerns seriously, it is noteworthy that no evidence has been presented demonstrating that the accused has threatened, contacted, approached, or attempted to influence any witness since his arrest. The affidavit merely states that the witnesses have expressed apprehension owing to the accused's influence and proximity to them. 30.In Republic v Dwight Sagaray & 4 Others [2013] eKLR, the Court held that allegations of witness interference must be supported by cogent evidence and not mere speculation. The Court stated that interference must be demonstrated through facts showing a real likelihood of obstruction of justice. 31.Compelling reasons must be forceful, convincing, and supported by evidence capable of persuading the court that release of the accused would prejudice the administration of justice. 32.The court is not persuaded that the evidence placed before it rises to that threshold. The fears expressed by the witnesses are understandable but remain largely anticipatory. There is no allegation that the accused has attempted to contact any witness while in custody or that he has a history of interfering with witnesses in previous proceedings. 33.The Investigating Officer also depones that the accused is influential within the community and that tensions remain high owing to the underlying land dispute. However, influence in society is not, by itself, a compelling reason for denial of bond. Were it otherwise, prominent members of society would be denied constitutional protections merely because of their social standing. 34.In Republic v Joktan Mayende & 3 Others [2012] eKLR, the Court held that while public order and witness protection are relevant considerations, the prosecution must demonstrate a real and identifiable risk and not merely speculative fears. 35.The court has also considered the allegation that the accused may abscond. The material before the court shows that the accused voluntarily presented himself to the police, has known residences, owns immovable property within the jurisdiction, is married, and has children. No evidence has been presented of any previous failure to attend court in criminal proceedings—the allegations regarding Petition No. E001 of 2026 remain disputed and do not, without more, establish a likelihood of absconding. 36.The court has further considered the Probation Pre-Bail Report dated 10th June 2026 prepared by Augustine Langat, Assistant Director, Narok Probation Station, pursuant to the court's directions. The report is comprehensive and based on interviews conducted with the accused, members of his family, members of the victim's family, local administrators, including the Chief of Maji Moto Location and the Acting Deputy County Commissioner for Narok South Sub-County, and other persons conversant with the circumstances of the case. 37.The report establishes that the accused is a forty-three-year-old Kenyan citizen with deep roots within Narok County. He owns a home and property in Maji Moto Location and also maintains a permanent residence in Narok Town where he lives with his wife and five school-going children. The report further confirms that he has extensive family ties, enjoys strong support from his immediate and extended family, and has no known history of abuse of drugs or other substances. 38.The probation officer further notes that the accused is a well-known member of the community, having previously served as Chairman of Maji Moto Group Ranch and currently serving as a member of the Board of Directors of Nyayo Tea Zones Development Corporation. While these positions demonstrate influence within the locality, the report equally confirms that the accused has a fixed abode, identifiable social ties, and sufficient community attachment, factors which ordinarily reduce the likelihood of absconding. 39.Importantly, the report reveals that the local administration, including the Chief of Maji Moto Location, the village elder, and the Acting Deputy County Commissioner, do not perceive the accused's release on bond as likely to occasion unrest, provided the court imposes appropriate conditions. The Acting Deputy County Commissioner observed that the security situation in the area has considerably improved and recommended that any release be accompanied by conditions to maintain harmony among the community's existing factions. 40.The court has also considered the concerns expressed by the victim's family as captured in the probation report. The family remains apprehensive about the accused's release, primarily because other suspects have not yet been arrested and because they fear that his return to the locality may revive tensions stemming from the incident. Nevertheless, the victim's family did not completely oppose the possibility of release. Rather, they requested that should the court grant bond, stringent conditions be imposed to safeguard witnesses and preserve peace within the locality. 41.Significantly, the probation officer concludes that the accused possesses strong family and community ties, has known residences, and that his family is willing and able to ensure compliance with any conditions imposed by the court. The probation officer ultimately recommends that the accused be released on bond, subject to strict conditions to address the concerns raised by the victim's family and to maintain peace and tranquillity in the Maji Moto area. 42.The findings of the probation report substantially corroborate the position advanced by the defence that the accused is not a flight risk and has deep roots within the jurisdiction of this court. At the same time, the report confirms genuine concerns among the victim's family and the local community. In the court's view, those concerns can be adequately addressed through carefully tailored bond conditions rather than by continued pre-trial detention. 43.Significantly, the prosecution itself informed the court that it had no compelling reasons to oppose bond and only urged the court to take into account the victim impact statement. This position substantially weakens the argument that compelling reasons have been established. 44.The court further notes that the concerns regarding witness protection, public order and the accused's safety can adequately be addressed through carefully crafted bond conditions. 45.The seriousness of the offence charged, though an important consideration, cannot by itself justify denial of bond. In Republic v John Kahindi Karisa & 2 Others [2010] eKLR, the Court held that the gravity of a charge alone does not constitute a compelling reason, and that each case must be assessed on its own circumstances. 46.Having carefully weighed the competing rights and interests before the court, I am not satisfied that the prosecution and the victims have demonstrated compelling reasons sufficient to justify continued pre-trial detention of the accused. 47.I am persuaded that the interests of justice will be sufficiently protected through the imposition of strict bond terms designed to safeguard witnesses, maintain public order, and secure the attendance of the accused during trial. E. Disposition 48.Having carefully considered the application, the affidavit of the Investigating Officer, the Victim Impact Statements, the Probation and Aftercare Service Bail Report dated 10th June 2026, the submissions of all counsel appearing, and the applicable constitutional and statutory principles, I am not satisfied that compelling reasons have been established to warrant the continued pre-trial detention of the accused. 49.Consequently, the application for release on bond is hereby allowed in the following terms:i.The accused shall be released upon executing a bond of Kenya Shillings Two Million (Kshs. 2,000,000/=) with two sureties of a similar amount to be approved by the Deputy Registrar of this Court.ii.In the alternative, the accused shall deposit ksh 1,000,000 cash bail.iii.Upon release, the accused shall not directly or indirectly contact, intimidate, threaten, influence, or interfere with any prosecution witness.iv.The accused shall not enter, visit, reside in, or access Olchoroonyokieo Village, Maji Moto Location, or the immediate scene of the alleged offence, save with prior leave of the court or for purposes expressly authorised by the Investigating Officer and communicated to the court.v.The accused shall report to the DCI Narok South Offices once every 1st week of the month with effect from 2nd July 2026 until further orders of the court.vi.The accused shall not directly or indirectly communicate with, contact, intimidate, influence, or interfere with the family of the deceased, the prosecution witnesses identified by the Investigating Officer, namely Anatola Lanoi, Shadrack Kimorgo, Ritei Merku and Simon Kool, or any other witness whom the prosecution may call.vii.The accused shall provide his current residential address and telephone contacts to the Investigating Officer and notify both the court and the Investigating Officer of any change thereof.viii.Any breach of the foregoing conditions shall result in immediate cancellation of the bond.ix.The matter shall be fixed for hearing on a priority basis. 50.Orders accordingly. DATED, SIGNED, AND DELIVERED AT NAROK, THIS 12TH DAY OF JUNE, 2026……………………………….CHARLES KARIUKIJUDGE