Republic v Ogosi alias Goddy Andiki alias Ojode alias Goddy (Criminal Case E013 of 2026) [2026] KEHC 11735 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL CASE NO. E013 OF 2026** **REPUBLIC …………………………………………………….…………. PROSECUTION** **VERSUS** **GORDON OTIENO OGOSI alias GODDY ANDIKI alias OJODE ALIAS GODDY ………………………………………………………………………………….…… ACCUSED** **Coram: Before Justice R. Nyakundi** **M/s Leina Davies for the State** **RULING** 1. The Accused herein was charged of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars are that on the 29th day of November 2024 day Ekwanda Area, in Luanda Sub County within Vihiga County jointly with Others not before Court unlawful murdered John Odongo Omondi alias Kolombo. 2. He pleaded guilty to the offence and in his defence he was being represented by Mr. Lugadiru whereas the Prosecution was led by Mr. Leina. As part of this process an objection was raised by a nominee of the victim family namely Kepher Ojil Odongo dated 21st July 2026 in which he asserted and grounded the objection as follows: *As per KO-09A to KO-09C, I reported to Independent Police Oversight Authority on 2nd December 2024. I complained that Ekwanda Police refused to detain my nephew and chased the crowd away leading to his death. It is after IPOA involvement and intervention by IPO/DCI that the file was transferred from Ekwanda and Luanda, Senior Officers were transferred, and DCIO Mbale took over and arrested the accused. Had it not been for IPOA even the accused person now on the dock would not have been arrested.* ***OTHER SUSPECTS ARE FREE AND ACCUSED REFUSES TO NAME THEM*** *The accused did not act alone. Other persons who were with the accused and were positively identified for killing John have not been arrested. In particular:* 1. *JAMES OMOLE who was working for my cousin AGREY OCHIENG OKORE was left scot free.* 2. *A TEACHER who claimed the late John stole his clothes and was not even found with any alleged clothes is roaming free and going about with his work. The accused has refused to volunteer information of his accomplices. If released on bond, he will cancel them and interfere with investigations. He was not alone.* ***RISK OF WITNESS INTERFERENCE AND INTIMIDATION*** *I am afraid of witness interference. In KO-05E I stated: “The Main Suspects who killed my nephew, John Odongo are now back roaming scot free in the Village and the delay in concluding investigations will lead to miscarriage of justice. “I have several times called the accused person and the Mother a few days after John was murdered during daylight and they refused to come and even to write a statement. Releasing Gordon will send a very wrong signal and people will plan and kill others.* ***FRAUDULENT AND UNSUITABLE SURETY*** *The person seeking to bail out a murder suspect is calling himself a "friend" and not a relative. This is a stranger to the family of the deceased.* 1. *The proposed title is for land in KISUMU COUNTY and not VIHIGA COUNTY where the offence occurred and where the witnesses reside. Murder charges cannot be secured by a title deed of a place far in another county. This is a big fraud which the Courts should not jump into.* 2. *The Bondee has not produced registration of his business.* 3. *No Survey Report, Official Search, or Land Rates Clearance has been produced to verify ownership. I pray for an official search, certified Survey Map, and verification of business registration before any surety is accepted.* 4. The pre bail report was filed by the Probation Officer in which he captured in detail the following subheadings: *introduction and sources of information, accused’s family background, accused’s personal history, drugs and substance abuse, previous adherence to bond/bail terms, seriousness of the offence, community ties, bond/bail sureties and securities and victim’s family concerns that: Selah Odongo alias Haleluyah, the deceased's step grandmother, did not express any objection to the accused's release on bond. She explained that they are related, describing the accused as her grandson, and noted that he has a young family that depends on him. In her view, his continued incarceration would adversely affect his dependants. She further stated that the accused has never been associated with any criminal conduct that would raise concern and confirmed that she does not fell threatened by his possible release on bond*. 5. Incidentally the Court was never favored with an affidavit from the Investigation Officer who is the key actor being envisioned by Article 49 (1)(h) of the Constitution. Nevertheless, that would not defeat the Court to exercise its discretion by applying its mind to the facts of this case and the objection being raised by one Kepher Ojil Odongo who has communicated in writing on the frustrations he has had in pursuing justice for the victim family to ensure that the Accused before Court was apprehended by the National Police Service so that he can face the full force of the law. **Decision** 1. It is settled law that Kenya Courts on bail pending trial are guided by Article 149(h) of the Constitution which guarantees bail unless compelling reasons exists. The fundamental principles which flow from the decision of the High Court on exercise of discretion on bail applications are indicative of the following: * ***Constitutional Right:****Article 49(1)(h) gives an arrested person the right to bail on reasonable conditions pending trial, backed by the presumption of innocence under Article 50(2).* * ***Compelling Reasons:****The prosecution must prove forceful, real, and cogent grounds (such as interference with witnesses or flight risk) to deny bail; mere public interest or offense severity is insufficient.* * ***Pre-Bail Reports:****Courts frequently order social or probation pre-bail reports to assess the accused's character, community ties, and safety impact before finalizing bond terms* * ***Judicial Discretion:****Courts must exercise discretion judicially and judiciously based on the specific facts of each case rather than arbitrary rules.* * ***Bailability and Gravity:****The nature and gravity of the offense charged are major factors, though bailable offenses favor the liberal grant of bail* * ***Probability of Attendance:****The likelihood of the defendant appearing for trial or jumping bail is a primary test.* * ***Interference with Justice:****Risk of interfering with witnesses or investigation serves as a substantial ground for refusal* 1. The Court in considering grant of bail or bond is bound to consider the following factors as prescribed by the Bond and Bail Policy Guidelines of the Judiciary 2023. * 1. *The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.* 2. *The strength of the prosecution case.* 3. *The character and antecedents of the accused person.* 4. *The failure of the accused person to observe bail or bond terms.* 5. *The likelihood of interfering with witnesses.* 6. *The need to protect the victim or victims of the crime.* 7. *The relationship between the accused person and the potential witnesses.* 8. *The best interest of child offenders.* 9. *The accused person is a flight risk.* 10. *Whether the accused person is gainfully employed.* 11. *Public order, peace and security.* 12. *Protection of the accused persons.* 2. This is one branch of the law that has been litigated over and over again to bring forth the interpretive spirit by Courts with regard to Article 49(1)(h) of the Constitution as read with Section 123 of the CPC which primarily deals with bail applications and the contours which must be individualized to the circumstances and facts of each case. The High Court in a different forum vested with the same scenario on application of bail under Article 49(1)(h) of the Constitution expressed itself in the case of *Republic v Irungu alias Jowie & Another [2020] KEHC 8361 KLR*: *Whereas it is clear that the Court has discretion to grant bail at any stage during trial, when the application for bail is made during the course of trial, one of the compelling reasons which the Court has to take into account is the strength of the prosecution, as provided for under the Bail and Bond Policy Guidelines at 4.9 (b) as follows:-“An accused person should not be subjected to pre-trial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pre-trial detention where the evidence against the accused person is strong. For example, where all the prosecution witnesses have testified and the accused person is aware of the weight of the prosecution’s case against him or her, it is presumed that such a person has an incentive to abscond as should therefore be denied bail – see Republic v Margaret Nyaguthi Kimeu [2013] eKLR. The strength of the prosecution case in itself, alone is not a good ground to deny an accused person the enjoyment of his constitutional right to bail. It must be demonstrated that by virtue of the strength of the prosecution case, there is a great incentive on the part of the accused person to abscond so as to defeat the course of justice. At this stage the Court is not expected to go into the merit of the case. In making the said determination, the Court must always balance between the conflicting interest of the State to bring offenders to trial and to dispense justice and the protection of the right of citizens, and the presumption of innocence, which require that no one without justification should be deprived of personal liberty.”* 1. This Court and others in the realm of Superiors Court have on several occasions committed themselves to an approach of the interpretation of the Bill of Right under Chapter 4 of our Constitution which is usually referred as purposive and sometimes also as value oriented. Here in this application, I am required to interpret and construe the provisions of Article 49(1)(h) of the Constitution on bond and bail right entitlement to the Citizens of Kenya who have been suspected or alleged by the State to have committed cognizable offences under our criminal law system. In this respect adopting a purposive interpretation of the Bill of Rights is aimed at teasing out the core values which underpinned the cluster of fundamental rights in an open and democratic society which Kenyans gave themselves by dint of the Constitution 2010, based on dignity under Article 28, freedom and security of the person under Article 29 and equality and freedom of non-discrimination under Article 27 of the Constitution. The Courts must endeavor therefore to prefer an interpretation of a provision that best supports and protects those values. 2. This is what the Supreme Court of Canada stated in *R v Big M Drug Mart Ltd 1985 18 DLR* on this subject matter on constitutional interpretation under the Bill of Rights: *The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view, this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought, by reference to the character and larger objects of the Charter [of Rights and Freedoms] itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.* 1. In this application generally specking the State has not opposed bond application as applied for by the Applicant save for the formulation by one Kepher Ojil Odongo who gave a list of chronological reasons and in his textual setting he vehemently opposed to any discretion as a whole being extended to the Applicant within the purview of Article 49 (1)(h) of the Constitution. It should be borne in mind that Article 24 of the Constitution provides for limitation of rights in the Bill of Rights and it goes on to state in the terms of the law in general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including- * 1. *The nature of the right;* 2. *The importance of the purpose of the limitation;* 3. *The nature and extent of the limitation;* 4. *The relation between the limitation and its purpose; and* 5. *Less restrictive means to achieve the purpose.* 2. A party like the Objector to this proceedings wishing the Court to make such an order on limitation of rights in our Chapter 4 of the Constitution of the Bill of Rights must provide it with reliable information to justify it doing so. The implication of the right to bail that it should not be limited unless the evidence on record falls within the provisions of Article 24 of the Constitution. This dictum analyzed above together with Article 24 of the constitution throws one back to the balancing exercise under the limitation clause to draw the line between what the Objector has laid before Court and the effect that the State is not opposed to the application of grant of bail in the interim period pending hearing and determination of the indictment against the Applicant. 3. An overview of the entire evidence the applicable law and jurisprudential decision direct that the best cause of action is to grant the Applicant bail under Article 49(1)(h) of the Constitution as read with Section 123 of the CPC conditioned as follows: 1. *That the objection raised by the Objector Kepher Ojil Odongo be and is hereby dismissed for want of merit* 2. *That the Applicant be released on bail terms of Kshs 1,000,000/= with two sureties of identical amount one of whom has already been approved by this Court as suitable save for the forensic report on the title deed instruments to be confirmed as being legitimate and legal within the enacted legislation on land matters.* 3. *That the trial of the Applicant’s case be set down for hearing on 22nd of September 2026* 4. *That all pretrial issues be dealt with as between the DPP and the defence legal Counsel without further delay to pave way for the hearing and determination of the case.* 5. *A final status conference be heard before this Court on 17th September 2026 to lay ground for case management protocols.* **DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**