https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7445

Republic v Odhiambo alias Msee (Criminal Case E009 of 2026) [2026] KEHC 7445 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7445 (KLR) Republic of Kenya In the High Court at Siaya Criminal Case E009 of 2026 DK Kemei, J June 2, 2026 Between Republic Prosecution and Fabian Odhiambo alias Msee Accused Ruling 1.The accused herein Fabian Odhiambo Alias Msee has been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the 7th April, 2026 in Ongoro village, Onyinyore sub location, South Gem Location in Gem Wagai Sub County within Siaya County, with others not before court murdered Eric Juma Akumu. 2.The accused denied the charges and hence a plea of not guilty was entered for him. Learned counsel for the prosecution indicated that they were yet to file an affidavit through the investigating officer on the issue of whether they will be opposing the release of the accused on bail pending trial and that he sought for an order that a pre-bail report be filed by the probation department. 3.The pre-bail report was duly filed by the County Probation Officer. The same is dated 26/5/2026. The summary thereof is that there is a possibility that the accused is a flight risk and that he is likely to interfere with witnesses as well as the fact that he lacks community ties and reliability. It was the view of the probation officer that the issue of bond be revisited after the witnesses have testified. 4.Mr Soita learned counsel for the prosecution indicated from the outset that at no time did they indicate that they would be opposing the release of the accused on bail pending trial. He urged the court to llok at the pre-bail report. Further, counsel intimated that he has not been furnished with reasons to oppose bail but however the court should look at the report and give directions. 5.Mr Odhiambo, learned counsel for the defence submitted inter alia; that the prosecution has not filed an affidavit presenting compelling reasons as to why bond should not be granted; that it is not the duty of the probation to present any compelling reason since it is the work of the prosecution; that the prosecution has not raised any such opposition to bond via an affidavit; that it is the view of the defence that where there is no affidavit by the investigating officer, then the bond should be granted; that the allegations raised in the pre-bail report should be rejected by this court unless there is actual evidence thereon; that the accused is a student at Rachuonyo Technical College and requires to continue with his studies; that the accused has alternative accommodation and that sureties are available. 6.I have given due consideration to the submissions of both learned counsels as well as the pre-bail report. It is not in dispute that the accused has already denied the charge and hence, ipso facto, he is deemed innocent until proved guilty. The accused therefore now enjoys the presumption of innocence. It is also not in dispute that the prosecution has not filed an affidavit through the investigating officer raising reasons as to why the accused should not be granted bail pending trial. Indeed, the learned prosecutor has confirmed that he has no instructions to oppose the release of the accused but nonetheless he urges the court to consider the same and proceed to give directions in the matter. 7.The guiding provision on bail pending trial is found in Article 49(1)(h) of the constitution which provides that ‘’an accused 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.’’ From this provision, there is no doubt that it is the duty of the prosecution to demonstrate before the court the compelling reasons for the court’s consideration. 8.Even though the Prosecution has not furnished the court with the requisite reasons to deny the accused bail pending trial, there are standard factors that the court must consider with the main primary factor namely, whether the accused will attend court for his trial. The other factors include inter alia; nature of the charge; strength of the evidence supporting the charge; gravity of the punishment to be imposed in the event of a conviction; previous criminal record of the accused; likelihood of accused interfering with witnesses e,t,c. It is noted that some of these issues have been captured by the probation officer but then it is not his duty to present any compelling reasons as the same is the function of the prosecution. Already, the learned counsel for the prosecution has confirmed that he has no instructions to oppose bail and hence, the court has not been presented with any compelling reasons. 9.In view of the foregoing observations, it is my considered view that the prosecution has failed to discharge its burden of demonstrating that compelling reason exist to justify a denial of bail to the accused herein. Consequently, the defence request for bail pending trial is allowed in the following terms:i.The accused is hereby released on a bond of Kshs 500,000/ plus one surety of like sum.ii.The surety to be approved by the Deputy Registrar of this court.iii.The accused is ordered not to interfere with the witnesses for the prosecution, either directly or through proxy.iv.That upon release, he shall attend court on all scheduled dates without fail until the final determination of the case or until further orders of this court.v.That in default of observing the bond terms, the bond shall be cancelled and that he together with his surety called to account.vi.Matter is scheduled for hearing on 13/7/2026 as earlier on agreed.vii.Production order to issue.Orders accordingly. DATED AND DELIVERED AT SIAYA THIS 2ND DAY OF JUNE 2026D.KEMEIJUDGEIn the presence of:Fabian Odhiambo alias Msee.................AccusedMr Odhiambo......................................for AccusedMr Soita..............................................for ProsecutionM/s Maurine............................................Court Assistant