https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8204

Republic v Ole Sharkoyo & another (Criminal Case E006 of 2026) [2026] KEHC 8204 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8204 (KLR) Republic of Kenya In the High Court at Narok Criminal Case E006 of 2026 CM Kariuki, J June 12, 2026 Between Republic Prosecutor and Kasaine Ole Sharkoyo 1st Accused Leiyan Ole Sharkoyo 2nd Accused Ruling (Bond/Bail Application) Introduction 1.The accused persons, Kasaine Ole Sharkoyo and Leiyan Ole Sharkoyo, are jointly charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. 2.The particulars of the charge are that on 17th April 2026, at Ndiren Esimentwa Village, Oleshapani Sub-location, Ololulunga Division, Narok South Sub-County within Narok County, jointly with others not before the court, they murdered Wilson Kirorei Ole Kipas. 3.Upon arraignment, both accused persons pleaded not guilty and subsequently applied to be released on bond pending trial. 4.Learned counsel for the accused persons, Mr Isinta, submitted that the applicants are father and son, are permanent residents within the court's jurisdiction, and have fixed places of abode. Counsel further submitted that the scene of the alleged offence is considerably distant from their residence and urged the court to admit them to reasonable bond terms. 5.The prosecution opposed the application. Learned prosecution counsel, Ms Kerubo, relied on the affidavit in opposition to bond sworn on 21st May 2026 by PC George Poghisho, the Investigating Officer. The prosecution contended that the accused persons are likely to interfere with witnesses who are close relatives and neighbours and that some witnesses have expressed apprehension about testifying should the accused persons be released. It was further argued that the accused persons may face hostility from members of the community owing to the circumstances surrounding the death and that the land dispute alleged to have precipitated the offence remains unresolved. 6.The court directed that pre-bail reports be prepared. Consequently, the Probation and Aftercare Service filed social inquiry reports dated 3rd June 2026 in respect of both accused persons. B. Issue for Determination 7.The sole issue for determination is whether the prosecution has established the existence of compelling reasons within the meaning of article 49(1)(h) of the Constitution sufficient to justify the denial of bond pending trial. C. Analysis and Determination 8.The right to bail or bond is constitutionally guaranteed under article 49(1)(h) of the Constitution, which provides:“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.” 9.The constitutional position is therefore settled: release on bond is the norm, while pre-trial detention is the exception. The burden rests upon the prosecution to demonstrate the existence of compelling reasons warranting limitation of that right. 10.In Republic v Danson Mgunya & Another [2010] eKLR, the court underscored that bail is a constitutional right available to all arrested persons and may only be denied where compelling reasons are established. 11.Likewise, in Republic v Joktan Mayende & 3 Others [2012] eKLR, the court held that compelling reasons must be forceful, convincing and sufficiently weighty to justify curtailment of the constitutional right to liberty. 12.The court is also guided by section 123A of the Criminal Procedure Code and the Bail and Bond Policy Guidelines, 2015, which identify factors relevant to bail determination, including the likelihood of absconding, interference with witnesses, protection of victims, preservation of public order, and the overall interests of justice. Whether the Accused Persons are Likely to Abscond 13.The prosecution contends that the accused persons constitute a flight risk, particularly because some alleged accomplices remain at large. 14.However, no evidence has been placed before the court demonstrating any attempt by either accused person to evade arrest, flee from the jurisdiction, or otherwise frustrate the investigative process following the alleged commission of the offence. 15.The probation reports indicate that the 1st accused is a 65-year-old former chief, a married man and father of nine children, while the 2nd accused is his 23-year-old son. Both are permanent residents of Masanatare Centre within Ololulunga Location and are well known within the locality. 16.The reports further reveal that both accused persons enjoy substantial family and community ties. Significantly, the area Chief expressly informed the probation officer that the accused persons are not considered flight risks and are likely to attend court whenever required. 17.In Republic v Richard David Alden [2016] eKLR, the court held that the likelihood of absconding must be established through objective facts and not conjecture or speculation. 18.In the absence of evidence demonstrating a real risk of flight, this court is not persuaded that the prosecution has established this ground as a compelling reason for denial of bond. Whether the Accused Persons are Likely to Interfere with Witnesses 19.The prosecution further argues that the accused persons are likely to interfere with witnesses because some of them are relatives and neighbours. 20.There is no doubt that witness interference constitutes a recognised compelling reason capable of justifying denial of bond. However, the allegation must be supported by credible evidence. 21.In Panju v Republic [1973] EA 282, the court observed that allegations of witness interference must be founded upon evidence showing actual or intended interference. 22.Similarly, in Republic v Fredrick Ole Leliman & 4 Others [2016] eKLR, the court emphasised that claims of possible witness interference must be supported by tangible evidence demonstrating a real likelihood of such conduct. 23.In the present case, no witness statement, complaint, threat report, or other evidentiary material has been presented demonstrating that the accused persons have attempted to contact, intimidate, threaten, or influence any prosecution witness. 24.The mere fact that some witnesses are related to the accused persons does not, without more, constitute sufficient justification for denial of bond. 25.Any residual concerns regarding witness protection can adequately be addressed through carefully crafted bond conditions prohibiting contact with prosecution witnesses. 26.Accordingly, I find that the prosecution has failed to demonstrate, on a balance of probabilities, a real likelihood of witness interference. Whether Release would Endanger Public Order or the Safety of the Accused Persons 27.The prosecution also contends that release of the accused persons may expose them to hostility from members of the public and potentially occasion a breach of the peace owing to the unresolved land dispute underlying the case. 28.The court has carefully considered the probation reports. 29.While the deceased's family understandably expressed grief and opposition to the release of the accused persons, the reports indicate that both the area Chief and the Village Elder consulted during the social inquiry confirmed that the situation on the ground has stabilised and remains peaceful. 30.The reports further disclose that the accused persons reside in Masanatare, whereas the deceased's family resides in Olmegenyo, approximately twenty-five (25) kilometres away. 31.Importantly, the local administration did not identify any immediate security threat likely to arise from the release of the accused persons. 32.Public hostility, apprehension, or perceived danger must be supported by objective and verifiable evidence. Mere assertions, however genuine, cannot suffice. 33.The court is alive to the pain and loss suffered by the deceased's family. Nonetheless, grief, anger, or opposition by itself does not constitute a compelling reason capable of overriding a constitutional right. 34.Having considered all the circumstances, I am not satisfied that the prosecution has established a substantial risk of public disorder or danger to the accused persons that cannot be adequately mitigated through appropriate bond conditions. D. Conclusion 35.The court has considered the affidavit sworn by the investigating officer, the submissions of counsel, and the probation reports dated 3rd June 2026. 36.The concerns raised by the prosecution are not without basis. The charge facing the accused persons is serious and is said to arise from a longstanding family land dispute. 37.However, the seriousness of the charge, standing alone, cannot constitute a compelling reason for denial of bond. 38.As was observed in Republic v Danson Mgunya & Another [2010] eKLR, the gravity of an offence cannot, by itself, justify the denial of a constitutional right where no other compelling circumstances have been demonstrated. 39.Upon evaluating all the material placed before the court, I am not satisfied that the prosecution has discharged its burden of proving compelling reasons sufficient to warrant the continued detention of the accused persons pending trial. E. Orders 40.Consequently, the bond application succeeds. 41.The accused persons, Kasaine Ole Sharkoyo and Leiyan Ole Sharkoyo, shall each be released on the following terms:a.Bond of Kshs. 1,000,000/= (Kenya shillings one million) with one surety of a similar amount to be approved by the Deputy Registrar;b.In addition, the accused persons shall comply with the following conditions:i.They shall not directly or indirectly contact, intimidate, threaten, influence, or otherwise interfere with any prosecution witness;ii.They shall not visit the residence of the deceased's family or engage in any conduct likely to occasion confrontation with members of the deceased's family;iii.They shall attend court whenever required until the conclusion of the trial;iv.They shall provide their current mobile telephone numbers and residential addresses to the Investigating Officer and the Deputy Registrar;v.Any breach of these conditions shall render the bond liable to cancellation. 42.It is so ordered. DATED, SIGNED AND DELIVERED AT NAROK THIS 12TH DAY OF JUNE, 2026.……………………………………HON. CHARLES M. KARIUKIJUDGE