https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/177

Republic v Okinyi (Sexual Offence E065 of 2026) [2026] KEMC 177 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 177 (KLR) Republic of Kenya In the Mombasa Law Courts Sexual Offence E065 of 2026 JM Mwenda, RM June 25, 2026 Between Republic Prosecution and Thomas Okinyi Accused Ruling 1.The question presently before this Court is not whether the accused is guilty. That question belongs to another day, after witnesses have testified, after evidence has been tested during cross-examination, and after the Court has had the benefit of hearing the whole case. Today, the Court stands at an earlier threshold. It is called upon to determine whether the liberty of a citizen, clothed as he is with the presumption of innocence, ought to be curtailed before his trial begins. 2.The accused person stands charged with the offence of Defilement Contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006, together with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the same Act. He pleaded not guilty to both counts on 24th June, 2026. 3.Upon plea being taken, learned prosecution counsel, Mr. Mbote, orally moved the Court seeking the denial of bond. The application was opposed by learned counsel Mr. Akude and learned counsel Mr. Oringe Waswa both appearing for the accused person. 4.The prosecution urged the Court to deny bond on several grounds. Learned prosecution counsel submitted that the complainant's mother and the accused person are in a romantic relationship and that despite the complainant having allegedly disclosed the acts of defilement to her mother, the latter was dismissive of the report and took no action. It was further submitted that, as a consequence of the mother's conduct, the complainant presently resides with her grandmother. The prosecution also expressed apprehension that there exists a likelihood of witness interference, contending that both the complainant's mother and her uncle had allegedly been exerting pressure upon the Officer Commanding Station to secure the release of the accused person. On the basis of those concerns, the prosecution sought time to enable the Investigating Officer swear and file an affidavit formally opposing bond and further prayed for the preparation of a Children's Officer's Report and a Pre-Bail Report to assist the Court in determining the issue of bond. 5.The defense, on the other hand, took the position that the application was unmerited. Learned counsel Mr. Akude submitted that where the prosecution seeks to limit a constitutional right, it bears the burden of placing before the Court credible evidence in support of such limitation. Counsel argued that all the allegations advanced by the prosecution were matters of fact which could only properly be placed before the Court through sworn affidavits and not through submissions from the bar. He further contended that in the absence of an affidavit from the investigating officer, the allegations regarding witness interference, the complainant's family circumstances and the accused person's alleged suitability for release remained unsubstantiated and amounted to little more than hearsay. 6.Counsel further submitted that bond is a constitutional right guaranteed under Article 49(1)(h) of the Constitution and that no compelling reasons had been advanced to justify its denial. It was argued that the prosecution had neither demonstrated that the accused was a flight risk, nor shown that he lacked a fixed abode, nor presented any evidence suggesting an intention to interfere with witnesses. 7.Learned counsel Mr. Oringe associated himself with those submissions and further argued that the constitutional presumption of innocence under Article 50(2)(a) remains firmly in favour of the accused person until proven guilty. Counsel submitted that the seriousness of the charge alone could not constitute a compelling reason for denial of bond and urged the Court not to sanction a process whereby an accused person is first detained and the justification for such detention sought afterwards. 8.I have carefully considered the submissions by all counsel for the prosecution and the defence. 9.The right to bail is anchored in the Constitution. Article 49(1)(h) provides that:“An arrested 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." 10.The constitutional architecture is therefore unmistakable. Liberty is the norm, detention before trial is the exception. The burden does not lie upon an accused person to persuade the Court that he deserves freedom. Rather, the burden lies upon the State to demonstrate why freedom should be withheld. Actually, as correctly pointed out by Mr Akude Learned counsel for the defence, the accused person need not make an application for bond, it is an automatic guarantee unless compelling reasons are given on why not to grant it. The court on its own motion can also decide not to grant bond for reasons properly captured. 11.The Court of Appeal in Michael Juma Oyamo & Another v Republic [2019] eKLR held that:“It is trite that the prosecution bears the burden of proving to the required standards that in any case an accused person ought not to be admitted to bail pending hearing of a criminal case. We must therefore consider whether the respondent discharged that burden in the matter that was before the learned judge” 12.This position reiterated that it is the prosecution that bears the burden of establishing compelling reasons. 13.In this courts view, compelling reasons must be founded on evidence and not on speculation, conjecture, hearsays, suspicion or general fear that the accused might abscond court, interfere with witnesses or any other reason that the prosecution is apprehensive of. These compelling reasons however, must be presented to the court within 24 hours. I say this because liberty, once taken away, cannot be restored retrospectively. Days spent in custody can never be refunded. For that reason, courts must tread carefully whenever they are invited to place a citizen behind bars before his guilt has been established. 14.The Court has carefully considered the application by the prosecution. The first and most striking feature of their application is that it was unsupported by evidence. No affidavit had been sworn by the investigating officer to support the denial of bond application who was actually present in court during plea taking, nothing explains why that was done. The court will not speculate on the reasons for that failure. 15.What the prosecution asks this Court to do is to deny a Constitutional right on the basis of assertions made from the bar and thereafter, grant time for evidence to be gathered or rather presented by way of an affidavit by the IO. 16.With tremendous respect, that is not how litigation works. The Court must express its profound concern regarding this approach. The IO had investigated the matter, the prosecution approved the charges against the accused person and caused him to be arraigned before Court. Yet when called upon to justify the limitation of a Constitutional right, it candidly informed the Court that it required more time to present the material necessary to support its position in court. 17.That approach puts the cart before the horse. The Constitution does not envisage a system where liberty is first withdrawn and reasons sought later. The State cannot arrest first, charge first, detain first and then commence a search for compelling reasons afterwards. Constitutional rights are not provisional privileges awaiting prosecutorial confirmation. 18.Indeed, if such a practice were permitted, the burden created by Article 49(1)(h) would effectively be reversed. An accused person would find himself in custody not because compelling reasons have been established, but because the prosecution hopes to establish them at a future date and file an affidavit opposing his release on bond at a later date. Such a result would be wholly inconsistent with the letter and spirit of the Constitution. 19.This Court therefore finds the prosecution's request for time to file an affidavit opposing bond after plea has already been taken to be not only procedurally irregular but fundamentally inconsistent with the constitutional imperative that limitations upon liberty must be justified at the point they are sought. 20.The Court must therefore state, respectfully but firmly, that the Office of the Director of Public Prosecutions is expected to approach bond proceedings with preparedness commensurate to the constitutional rights at stake. Applications seeking to curtail liberty should never be treated as matters to be assembled after arraignment. They ought to be fully prepared before the Court is invited to act upon them. 21.Turning to the substance of the application, the Court finds no material demonstrating that the accused is a flight risk. No evidence was tendered showing previous absconding, attempts to evade arrest, or any conduct suggestive of an intention not to attend trial. 22.Similarly, while witness interference is undoubtedly a compelling reason to deny bond where established, the Court has not been presented with evidence of actual interference or any specific acts pointing towards a real likelihood thereof. The mere existence of a relationship between the accused and the victim’s mother, without more, does not amount to a compelling reason. If it did, bond would become illusory in a vast number of criminal cases arising within families, communities and workplaces. 23.The prosecution also relied on the seriousness of the charge. There can be no dispute that the allegations facing the accused are grave. Sexual offenses against children strike at the very heart of human dignity. 24.This court however, notes that seriousness of an accusation is not synonymous with proof of a compelling reason. Courts do not deny bond because allegations are grave, they deny bond because evidence demonstrates a risk that justice will be undermined. To hold otherwise would be to punish before conviction. 25.Having considered all the material placed before it, this Court is unable to find that the prosecution has discharged the burden imposed by Article 49(1)(h) of the Constitution to provide compelling reasons for denial of bond to the accused. 26.That conclusion, however, does not dispose of every issue raised before the Court. The complainant is a child aged twelve years. During the proceedings, concerns emerged regarding her custody, welfare and living arrangements. Questions were also raised touching on family dynamics surrounding her care the prosecution was of the view that she remains with her grandmother during the time this matter will be in court. 27.Article 53(2) of the Constitution provides that:“A child's best interests are of paramount importance in every matter concerning the child." 28.The Court cannot ignore that constitutional provision. While the prosecution has failed to establish compelling reasons for denial of bond, the Court is satisfied that an independent assessment by the Children's officer is necessary before directions touching on the child are issued. 29.In the result, the Court finds that the prosecution has failed to establish compelling reasons within the meaning of Article 49(1)(h) of the Constitution. The oral application seeking denial of bond is therefore declined. However, before bond terms are set, the Court directs as follows:a.A Children's Officer's Report shall be prepared and filed concerning the welfare, custody, safety and living arrangements of the victim during this trial.b.Pending the filing and consideration of the said reports, the accused shall remain in custody. 30.As I conclude, I must state that when the liberty of a citizen is at stake, courts must be presented with of compelling reasons, not a request for time to discover them as was in this case. 31.It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE 2026.SIGNED BY/FOR:HON. JAMLICK MURIITHI MWENDAMombasa Magistrate CourtDate: 2026-06-25 18:28:45