https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9852

Republic v Nyamongo (Criminal Case E019 of 2026) [2026] KEHC 9852 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEHC 9852 (KLR) Republic of Kenya In the High Court at Kisii Criminal Case E019 of 2026 Sifuna Nixon, J July 7, 2026 Between Republic Prosecutor and Judith Kerubo Nyamongo Accused Ruling 1.The Accused Judith Kerubo Nyamongo is charged with the Offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. She has denied committing the offence. The facts are that on the 18th day of November 2025 at around 07.00 hours at Isana Village, Kionganyo Sub-location in Kisii County, she with other not before court, murdered Peter Motari. The Accused pleaded Not Guilty to charge, and thereafter applied for bail/bond. The Prosecution’s Opposition. 2.The prosecution opposed her release on bail/bond. Stating that it is opposed to bond at this stage. That the Investigating Officer has sworn an Affidavit detailing that she is a flight risk and also that there is likelihood of interfering with witnesses. Further that she has been in hiding since this offence was committed, and that it is only recently that the Accused was arrested when she was trying to exit Kenya to Tanzania through the Namanga Border. That after the alleged incident of this offence, the Accused disappeared and switched off her phones. 3.That her passport shows that she has since the offence, been exiting and re-entering the country. Also that she is likely to interfere with witnesses if released on bond; and that a witness has already reported to Kisii Police Station that the Accused has sent people to threaten her. The Defence’s Response. 4.Responding to the prosecution’s objection, the defence counsel contended that the flight risk specified in the affidavit is for foreigners. That the Accused has always been travelling to Tanzania and coming back. That the Accused is a business woman engaged in cross-border business, and that mere suspicion cannot be a compelling reason. 5.That the Accused is a law graduate from Kisii University, who has in the period she is alleged to have been hiding, been pursuing her legal career in a Nairobi law firm. That to sustain the ground of witness interference, there has to be clear evidence. 6.That the prosecution has not given the Court the Occurrence Book Number of the Report by the alleged witness; and that the affidavit has not also given the exact dates of the alleged interference. Hence that these are mere allegations. That moreover, for witness interference, Kenya has a Witness Protection. 7.That denying the Accused bail, will not only be prejudicial and malicious, but will also violate her constitutional right to bail. That the Accused is ready to comply with any bail/bond terms that the Court may deem fit to grant. The Pre-bail Report 8.The offence being bailable although serious, and the prosecution having raised weighty concerns, this Court directed the Kisii County Probation Office to file a Pre-bail Report. It deferred the determination of that bail/bond Application until the Report is filed. 9.The Report was finally filed, and it is dated 4th June 2026. The Report was to assess the Accused’s suitability for release on bail/bond and her likelihood of complying with the terms and conditions that may be imposed by the Court. The Report stated that the Accused is from a family in Omeremi Village, Kisii Central, where they have a home. 10.That she is unmarried woman aged about 31 years; and who upon the death of her parents, assumed a leadership role within the family and takes responsibility for the welfare of her siblings. That her siblings and family support her release on bail/bond. 11.That she has no history of prior criminal involvement among family members, and this is the first time she has come into conflict with the law. That she graduated from the Kisii University Law School in 2019, with a Bachelor of Laws degree; but is yet to complete the post-graduate Diploma of the Kenya School of Law. 12.Currently engaged in various business ventures such as in Kisii Town, including rental housing and a boutique business. That she denies any intention to interfere with witnesses and undertakes to keep away from them. She also denies any intention to flee, maintaining that she is a bona fide Kenyan from Kisii and only travels across the border for business purposes. 13.That while she has admitted having multiple residences (namely in her ancestral village, in Kisii town, and in Nairobi), she has stated that she would reside at the most suitable and secure location if granted bail/bond. 14.The Report further reports that the Accused’s release on bail/bond has been opposed by the victim’s family. the local administration, and some segment of the local community in her village. That the reason given by the victim’s family is that they are still grieving and perceive her potential release as insensitive to their loss. 15.That for the local community, it has mixed feelings. Some segment supporting, while the other oppose her release, citing arrogance and a negative reputation. That the local administration in her Omoremi Village have described her as unpopular, arrogant and with an intimidating disposition. That she has on several occasions verbally confronted and disrespected the local administrators. Hence that her release may present challenges within the community. Analysis and Determination 16.In Kenya, bail/bond is a constitutional right guaranteed under Article 49 (1) (h) of the Kenya Constitution. Despite being a serious offence, the offence of murder is bailable. Despite being bailable, murder like any other capital offence carrying a capital sentence, poses a higher likelihood of flight or abscondment. 17.Hence a court in deciding whether or not to grant bail/bond in a case where the Accused is charged with the offence of murder or any other capital offence, has to be very cautious and vigilant. It also has to, as a general rule, impose such stringent but reasonable conditions, as are proportionate to and commensurate with the seriousness of the charge. In Kenya, the grant of bail/bond, is guided by the Bail & Bond Guidelines, as well as the common law principles. 18.Notably, where there is even the slightest evidence of the likelihood of flight or abscondment, a court will decline the plea for bail/bond. Provided the evidence is credible. After all, bail/bond is not intended to punish or cause hardship to the Accused. Its purpose is to ensure that the Accused attends court whenever his or her case comes up; or whenever required by the court. In any case the need to punish does not arise at this stage of the proceedings, as the Accused having not been convicted, is presumed innocent until proven guilty- no matter the seriousness of offence they are indicted of. 19.On an Application for bail/bond, the factors that a court should consider, are well-settled. They include but are not limited to the following:a.The likelihood of flight or abscondment;b.The Accused’s history with bail/bond- whether he or she has previously absconded or taken flight;c.The likelihood of interfering with investigations, if they have not been completed;d.The likelihood of interfering with the witnesses;e.Concerns relating to the safety of the Accused and that of the witnesses;f.The findings and recommendations of the Pre-bail Report, if any; andg.The seriousness of the offence. 20.In Republic v. Danson Mgunya & Another [2010] eKLR, Ibrahim J (as he then was) observed that liberty is the most precious thing, hence that no one’s liberty should be denied without lawful reasons and in accordance with the law. 21.This Court has the unfortunate task of determining this Application. I need to clarify that a bail application is not a contest between the Accused and others. It is a contest between the Accused and the law. Therefore, while the Court welcomes the views of these others, its decision has to be based on the law and legally recognised grounds either in support or against the application. Not merely emotions and sentimentalism. 22.The Report has found that while some in her Omoremi Village acknowledged that the Accused has had disagreements with certain individuals, they confirmed that she is a known resident who operates a rental business in the area. Most respondents indicated that they did not have personal grievances against her. Besides, the misgivings and negative concerns were largely centred on her perceived negative reputation rather than any concrete risk factors. Neither were they based on legally recognised grounds. None pointed to the Accused posing a threat to public peace, being likely to abscond, or her safety being in danger. 23.A letter dated 28th May 2026 (Ref. No. DCI/SEC/4/4/VOL XXI/67) that the Kisii Central Directorate of Criminal Investigations (DCI) wrote to the Probation Office to inform this Report, has alleged that the Accused may be a flight risk, and that she has already put in place plans to escape to Tanzania. 24.In my considered view, although the Accused was absent or travelled in the period after the alleged offence, the prosecution has not demonstrated that that absence or travel were related to the alleged offence, or that she was by them evading arrest. Neither was it alleged that she during that period assumed a false identity. 25.The mere fact of her phone having been off, is not sufficient to confirm that she was on the run. It needs to be augmented by other evidence. As to her travels out of the country and returning thereafter, these seem to have been routine and unsupportive of the assertion of escape from jurisdiction. 26.In the end the Report concludes that the Accused is suitable, and recommended that she be granted bail/bond on stringent conditions that will mitigate the identified risks. 27.The defence counsel sternly criticized the DCI’s letter to the Probation Office, and questioned what their interest is in the matter; and urged the Court to issue a reprimand. In declining to do so, I see no fault in the said communication. Afterall it is the DCI that has been investigating the alleged incident, and that arrested the Accused. They together with the prosecution have a legitimate interest and stake in this case. They are also a legitimate stakeholder on the Accused’s application for bail. Hence they are some of those from whom the Probation Office can get information and facts for the Pre-bail Report. 28.Counsel further contended that this Court is not bound by the Report. The Prosecutor for his part, stated while this Court is not bound by the Report, it should not overlook its contents, and especially factors such as disappearance and switching off phones by the Accused after the alleged incident. That therefore she has demonstrated a propensity to abscond if released on bail/bond; and that there is also the risk of interference with witnesses. That all these facts support pre-trial custody preceding trial. 29.It is important for this Court to clarify that a Pre-bail Report is only informative and recommendational, but not binding on the Court. Even after receiving a Pre-bail Report, a court will still have to prudently consider all the prevailing circumstances and relevant factors such as whether the Accused is a flight risk; whether there is a likelihood of the Accused interfering with the witnesses; the safety of the Accused upon release on bail/bond; whether the Accused has a fixed and known place of abode; the history of the Accused while on bail previously if at all; and any other relevant factors. 30.Notably, although the offence of murder is bailable and bail is a constitutional right, given the seriousness of the offence and the penalty if convicted, the chances of flight are high. In this case, the Pre-bail Report has reported that she is not a flight risk. Further that only the victim’s family, the local administration and a segment of the community have opposed her release. The rest of the community, and her close family are either supportive or do not mind her pre-trial release on bail/bond. 31.Although the Report is not binding on this Court, I am persuaded that the Accused is suitable for release on bail/bond; provided it is on terms that are commensurate with the seriousness of the charges she is facing, and is on such terms as take into consideration the negative factors alluded to in the report. I find that even though these factors militate against the grant of bail/bond, they are such as can be addressed, assuaged and mitigated by this Court setting appropriate bail/bond terms. 32.Denial of bail/bond should not be used as a punishment; and neither should bail/bond terms. While the terms should be commensurate with the offence, they need to also be reasonable, realistic, practicable and possible. They should be practically attainable, and not abstract or merely theoretically available. They should not be placed beyond reach, and neither should they seem to be given by one hand, and taken by the other. 33.I accordingly grant the Accused her bail/bond on the following terms that I have found to be appropriate in the circumstances, failing which the bail/bond shall be cancelled:a.She be released on a cash bail of Ksh 600,0000= or bond with one surety of similar amount;b.She shall maintain only one place of residence, the particulars of which she shall supply to the Investigating Officer;c.In case of any change of residence, she shall give prior information to the Investigating Officer. With the particulars of the new residence;d.She shall while on bail/bond, not contact any of the prosecution witnesses;e.She shall while on bail/bond, be of good conduct and avoid any conflict with the local administration or local community;f.Her passport shall be deposited in court and remain in court until this case is heard and determined;g.While on bail/bond, she shall not leave or travel out of Kenya without the express permission of this Court;h.She shall while on bail/bond, be reporting to the Kisii County DCI office once every month, for six months.i.Her surety shall attend this Court and personally undertake to ensure that she will be attending court whenever her case comes up and whenever she is required to attend.j.During the pendency of this case, and while the Accused is on bail/bond, the two minors who were in her custody (Namely Fridah Nyakari And Fridah Moraa) and that had been charged in Kisii High Court Criminal Case NO. E033 OF 2025 with the same murder, shall not be under the Accused’s custody. DATED AND DELIVERED AT KISII ON THIS 7TH DAY OF JULY 2026.PROF (DR) NIXON SIFUNAJUDGE