https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11890

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL CASE NO. 37 OF 2020** **REPUBLIC…………………………………PROSECUTION** **VERSUS** **KEVIN OTIENO ODUOR ALIAS** **WYCLIFFE OTIENO ODUOR…………ACCUSED PERSON** **RULING (2)** **BACKGROUND** 1. **STATEMENT OF OFFENCE:** Murder Contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. 2. **PARTICULARS OF OFFENCE:** On 27th May 2020 at Junction Area within Korogocho in Nairobi County jointly with another not before Court murdered Duncan Odhiambo Guda. **COURT PROCEEDINGS** 1. On 30/6/2020, the Accused person was found FIT TO PLEAD. And upon the Information; statement and particulars of offence of murder read to Accused person and he pleaded NOT GUILTY. 2. On application for Bail & Bond, the Prosecution objected to release of bail and bond as the other suspect was still at large, a witness feared for his life and approached ODPP for Witness Protection due to apprehension and fear for his life. The Accused person gave different names it was not clear on his identity; during arrest he stated he was Kevin Otieno Oduor and later his mother referred to him as Wycliffe Otieno Oduor and the Accused person was a flight risk and did not disclose fixed abode. 3. The Accused person’s Counsel applied bail and bond for Accused person as Constitutional right, his family resided in Kariobangi and would not interfere with witnesses. No evidence was tabled to Court of the vulnerable Witness who needed protection and if so the evidence would be taken in camera and the witness relocated to Baba Dogo and it was not possible for Accused person to engage in witness interference. 4. The Court Hon G.W.Ngenye LJ (as she then was) on 29/7/2020 delivered Ruling that there were sufficient compelling reasons to warrant denial of bail to the Applicant. 5. On 9/2/2022 hearing commenced before Hon Bwononga J with evidence of PW1 Arresting Officer who was led by Informer to the Accused Person and he effected arrest. 6. On 24/2/2022 PW2 testified Pathologist produced Post Mortem Report. 7. From then on the I/O could not trace/ avail Scene of Crime Officers P.C Njeru and Linnet Auma Onyango who left Ngomongo. The original I/O transferred to NTSA. From 2022 todate no other witness has been availed and the Accused person has remained in custody. 8. On 9/7/2025 when this Court took over the matter, the Accused person applied for bail and bond. On 29/9/2025 the Accused Person Counsel renewed bail and bond application. On 11/2/2026, the bail and bond application was renewed. Mr Wamwayi appearing with Mr Kariu told the Court that the Accused person’s mother Judith Atieno was in Court and the Accused person was no longer a flight risk and had fixed abode and bail and bond to be granted. 9. The Prosecution through Ms. Tum objected to grant of bail and bond as per the Ruling by Hon Ngenye LJ where the Accused person gave different names and there was a witness under Witness Protection who had not testified yet. 10. The Court granted orders the protected witness testify next hearing date and Accused person to be taken to National Bureau of Registration and his identity/names confirmed. 11. The Prosecution Ms Tum applied that the current I/O take finger prints of Accused person to take to National Bureau of Registration.The Court granted the order as applied for by Prosecution. 12. On 20/4/2026, Ms Tum ODPP confirmed that finger prints were taken to National Bureau of Registration but the Accused person was not present and the matter was adjourned to 22/4/2026 & P/O was to issue to the accused person to attend court physically. 13. On 22/4/2026 Ms. Tum ODPP produced report from National Registration Bureau dated 15/4/2026 that confirmed finger prints on P20 were examined and searched in Finger Print Bureau confirmed identical finger prints in the particulars of Wycliffe Odour Otieno **Card Number 2501714433 &Individual Number 38645777.** 14. The Court granted Accused person bail and bond as follows; **Bond of Ksh 300,000/- with 1 surety or Cash Bail of Ksh 100,000/- with 1 contact person with verifiable ID card or Payslip or Chief’s letter to be processed by DR Criminal Division. Hearing was scheduled to 15/7/2026.** 15. On 15/7/2026, the Prosecution Mr Bickoh informed Court that they availed 1 witness Sgt Mutua on line but he did not log on and applied for adjournment. Mr Wamwayi for Accused person reapplied for bail and informed Court that theCash Bail of Ksh 100,000/- was too high and the Accused person’s family could not raise the amount. Mr Bickoh for State/Prosecution/ODPP objected to further reduction of bail and bond Cash Bail Ksh 100,000/- was sufficient. **DETERMINATION** 1. The Court has perused Court file and outlined salient features of proceedings that informed orders, granted on bail and bond and conduct of trial. The Court is obligated to balance the rights of the Accused person to a fair hearing and the Complainant/Victim/public or society’s rights in compliance with the Constitution. 2. **Section 123 of the Criminal Procedure Code** as read with **Article 49(h) of the Constitution** also provide for the right to bond which can be issued at any time of the Trial and reviewed by the Court when circumstances change or there are new developments. 3. The **Bail and Bond Policy Guidelines** provide at **paragraph 4.26 (h) and (d) that:-** ***“(h)In addition to the factors stipulated in Paragraph 4.9 above, the court should consider, as appropriate, the following additional factors in deciding whether to grant an accused person bail….*** ***(d). Change of circumstances during the trial.”*** 21. This Court granted bail and bond upon officially verifying identity and proper names of the Accused person through ODPP/I/O in touch with National Registration Bureau. The witness under protection has not been availed to date or any progress/status disclosed. It is of concern that no witness has testified since 2022 to date. 22. On the other hand, **Art 49 Constitution** refers to grant of reasonable bail and bond not necessarily affordable. Each case is based on its specific circumstances, in this case, the offence is serious and the bail and bond granted is to ensure the Accused person attends Court and the Accused person has not presented any change of circumstances for the Court to consider. Finally, the Court will require a Pre-bail Report to aid the Court to make informed decision on variation of bail and bond and Accused person’s fixed abode and contact. 23. **DISPOSITION** 1. **The application for variation of bail /bond downwards is not granted at this stage as the Court requires Pre-Bail Report by Probation Officer to aid informed decision going forward.** 2. **The ODPP/State/Prosecution to ensure witness(s) are available especially the witness/Informer that sought protection on next hearing date 26/10/2026 as no witness has testified since 2022 while Accused person has been in custody.** 3. **The variation of bail/bond downwards shall be considered on/after hearing date.** **RULING DELIVERED SIGNED DATED IN OPEN COURT – CRIMINAL DIVISION- MILIMANI ON 23/7/2026 VIRTUALLY/PHYSICALLY.** **M.W.MUIGAI** **JUDGE** **Mr. Wamwanyi** – We would like to have the Court file taken to the Registry so that we have Cash Bail/Bond Terms processed. **Court** – The court file is release to the Registry. **M.W.MUIGAI** **JUDGE** **23/7/2026**