https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12517

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKADARA** **MAKADARA HIGH COURT** **CRIMINAL CASE NO. E020 OF 2026** **REPUBLIC……………..……………….….………................…APPLICANT** **VERSUS** **VICTOR SAMSON OGUTU………….……………………RESPONDENT** **RULING** 1. This case came up for plea on 16/06/2026. The accused person pleaded not guilty to an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. By the time the plea was taken CPL Tom Odhiambo had sworn an affidavit opposing the accused person’s release on bond. 3. Under paragraph 9 of that affidavit the investigating officer stated that one of the prosecution witnesses was the accused person’s girlfriend. That if released on bond there was apprehension that he will interfere with her. 4. It is further averred that due to the seriousness of the charge and the likely sentence the accused person is likely to abscond. 5. In response the investigating officer asked that the accused person be released on reasonable bond terms. That bond is a constitutional right. 6. The court had directed that a pre-bail report be filed. At the time of writing this ruling none had been presented. 7. As submitted by the defence bond/bail is Constitutional right. Under Article 49 (1) (h) of the Constitution this right can only be limited where compelling reasons are given. It is the duty of the prosecution to establish these reasons on a balance of probability. 8. While the Constitution does not define what constitutes compelling reasons on case law has provided what acted as a guide. In Michael Juma Oyamo & Another versus Republic (2019) eKLR, the Court of Appeal defines compelling reasons as forceful and convincing as to make the court fatal standby that the accused should not be released on bond. The court further held that accused person should not be denied bond on flimsy grounds but on area and cogent ground that meets the constitutional standards. 9. The reasons and standards are captured under Section 4.9 of the bail and bond policy guidelines which fleshed out Section 123A (1) of the Criminal Procedure Code. 10. The court should always bear in mind that the accused person is pressured/innocent. The right to liberty should not be curtailed lightly. In the case of Republic versus Nuseiba Mohammed Haji Osman (2018) eKLR the court stated that any claim made against an accused person towards curtailing his liberty must not be made in speculations or conjecture. 11. In the present case the only claim made is that the accused person may interfere with a girlfriend whom she was living with. That he had influence over her what is required is real and cogent evidence of possible interference. No evidence has been brought to show any attempt at interference. It has not been stated that he tried to prevent her from recording her statement. He alleged girlfriend who is not named has not sworn affidavit expressing her fears. 12. In my view, this is what a court in Osman case above meant when it referred to speculation and or conjecture. 13. The court was also told that these are serious charges that the motivation to abscond is high. As noted above the accused person is presumed innocent. The seriousness of the offence while all factor to consider should be balanced against the right to liberty. The question is whether the accused person will come to court when required. On this question nothing has been exhibited to show that he is a flight risk. 14. In the result I am satisfied that the prosecution has not provided adequate compelling reasons and that those given can be appropriately dealt with by bond terms and conditions. 15. The accused person shall therefore be released on the following terms and conditions: - 16. Bond of Kshs. Five hundred thousand (Kshs. 500,000/=) with one surety of similar amount. 17. In the alternative cash bail in sum of Kenya Shillings two hundred thousand (Kshs. 200,000/=) with one-person surety of similar amount. 18. The accused person shall make no contact with any of the intended person and witnesses in whatsoever nature or form unless the same is done in the presence of the investigating officer. 19. It is so ordered. **Hon. Alex K Ithuku** **JUDGE** **Court** Ruling delivered in Virtual Court. Ms. Ouko for the accused Mr. Ochieng for the state Accused present virtually Court assistant – Annastacia **Hon. Alex K. Ithuku** **JUDGE** **28/7/2026** **Court** Hearing on 6/10/2026 **Hon. Alex K. Ithuku** **JUDGE** **28/7/2026**