Republic v Ombui alias Chipo & 5 others (Criminal Case E010 of 2026) [2026] KEHC 8949 (KLR) (4 June 2026) (Ruling)

Republic v Ombui alias Chipo & 5 others (Criminal Case E010 of 2026) [2026] KEHC 8949 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8949 (KLR) Republic of Kenya In the High Court at Kisii Criminal Case E010 of 2026 Sifuna Nixon, J June 4, 2026 Between Republic Prosecutor and Angellah Chibalonza Ombui alias Chipo 1st Accused Angerah Moraa Momanyi 2nd Accused Elizabeth Sigara Ombuya 3rd Accused ZMO (A Minor) 4th Accused DBN (A Minor) 5th Accused Halliet Kerubo Onyango 6th Accused Ruling 1.This Ruling on the 2nd Accused’s Application dated 29th May 2026. The Application, which has been brought by way of a Notice of Motion, is supported by her Supporting Affidavit sworn on even date. By it, the Applicant ANGERAH MORAA MOMANYI the 2nd Accused is this case charged alongside five others, who are her fellow students at Magena Girls Secondary School. 2.They are charged with the offence of Murder contrary to Section 203 as read with Section 204 of the penal code. The charges arise from the death of LAURA KEMUNTO a fellow student that died as a result of a fire at one of the school’s dormitories. Which fire the Accused are alleged to have started. 3.All the Accused denied the charges, and pleas of NOT GUILTY were entered for each one of them. They were each initially granted a cash bail of Ksh 100,000=, with a surety of similar amount. 4.Only the 3rd Accused, the 5th Accused and the 6th Accused, managed to meet those bail/bond, and were subsequently released on bond. The 1st Accused, the 2nd Accused and the 4th Accused did not. The others applied for a review of those terms. A ruling that was delivered by this Court on 28th April 2026, allowed the Application, and reviewed those bail/bond terms downwards, and imposed new bail/bond terms as follows:a.A Cash bail of Ksh 50,000= or bond of Ksh 100,000= with a surety of similar amount.b.The 1st and 2nd Accused who are adults, to also execute their personal undertaking to attend Court when required. But for the 4th Accused who is a minor, her personal bond to be executed by the parent. 5.While the 1st and 4th Accused met those new bail/bond terms, the 2nd Accused did not. Hence, she continued being in remand at KISII GK PRISON where they had remanded. Having been in remand since 25th February 2026 when the plea was taken; and in custody since her arrest. In her Application, she has sought a review of those new bail/bond terms. On the ground that her parents are unable to raise the same. Yet that being a student she is missing out on her studies. 6.The Application has cited Article 49 of the Constitution; which grants her the right to bail. It has also stated that she has a fixed abode and is not a flight risk. It has also promised that she will always avail herself in court; and that she will not interfere with the witnesses. Further that the prosecution will not suffer any prejudice if her bail/bond terms are reviewed downwards, and she is released on bail/bond. 7.The Prosecution did not file any opposition to the Application. At the hearing, the Prosecutor initially stated that the state was opposed to the Application as there were similar pending applications by the Co-Accused. However, upon perusing the record and noting that, that was not the position, and that all the other Accused had met the bail/bond terms and been released, he withdrew his opposition. Citing the following reasons:a.That the Applicant was a school-going student;b.That her co-Accused have all been released on bail/bond, and she is the only one among them that has remained in remand;c.That she will not interfere with witnesses or investigations, as investigations had been completed, the key witness had already testified, and the remaining witnesses are the teachers and the Investigating Officer; andd.That as to the likelihood of flight, sufficient conditions had already been set by the court in its earlier rulings. Analysis and Determination 8.I have considered the Application and its Supporting Affidavit; as well as the Prosecution’s response, which is favourable to the Application. In Kenya, bail/bond is a constitutional right guaranteed under Article 49 (1) (h) of the Kenya Constitution. Despite being a serious offence, the offence of murder is bailable. Despite being bailable, murder like any other capital offence carrying a capital sentence, poses a higher likelihood of flight or abscondment. 9.Hence a court in deciding whether or not to grant bail/bond in a case where the Accused is charged with the offence of murder or any other capital offence, has to be very cautious and vigilant. It also has to, as a general rule, impose such stringent but reasonable conditions, as are proportionate to and commensurate with the seriousness of the charge. In Kenya, the grant of bail/bond, is guided by the Bail & Bond Guidelines, as well as the common law principles. 10.Notably, where there is even the slightest evidence of the likelihood of flight or abscondment, a court will decline the plea for bail/bond. After all, bail/bond is not intended to punish or cause hardship to the Accused. Its purpose is to ensure that the Accused attends court whenever his or her case comes up; or whenever required by the court. In any case the need to punish does not arise at this stage of the proceedings, as the Accused having not been convicted, is presumed innocent until proven guilty- no matter the seriousness of offence they are indicted of. 11.On an Application for bail/bond, the factors that a court should consider, are well-settled. They include but are not limited to the following:a.The likelihood of flight or abscondment;b.The Accused’s history with bail/bond- whether he or she has previously absconded or taken flight;c.The likelihood of interfering with investigations, if they have not been completed;d.The likelihood of interfering with the witnesses;e.Concerns relating to the safety of the Accused and that of the witnesses;f.The findings and recommendations of the Pre-bail Report, if any; andg.The seriousness of the offence. 12.These factors have substantially and extensively been addressed by the Applicant and the Prosecution at the hearing of this Application.I find that the Application has merit, and has made a compelling case for a review of the bail/bond terms earlier imposed. 13.As earlier stated in my previous ruling in this matter, denial of bail/bond should not be used as a punishment; and neither should bail/bond terms. While the terms should be commensurate with the offence, they need to also be reasonable, realistic, practicable and possible. They should be practically attainable, and not abstract or merely theoretically available. They should not be placed beyond reach, and neither should they seem to be given by one hand, and taken by the other. 14.They should for instance not be impossible, or absurd. In all cases, the court should also consider the circumstances of the Accused, the case itself generally, the as well as concerns about the victim (where applicable), and witnesses. In Republic v. Danson Mgunya & Another [2010] eKLR, Ibrahim J (as he then was) observed that liberty is the most precious thing, hence that no one’s liberty should be denied without lawful reasons and in accordance with the law. 15.In the case at hand, all the Accused are school girls under the care and supervision of their parents. They like any Accused persons, are presumed innocent until proved guilty upon a conviction. They are young girls who should be given a chance of continuing with their education as this case proceeds. Their right to pursue their education and chase after their career dreams, should not be suddenly extinguished by reason only, of a pending trial. For the Applicant in particular, all her co-Accused have met the bail terms. She has not. 16.Her mother even attended Court and stated that she had so far managed to raise only Ksh 30,000=; but this Court told her to go and fetch the whole amount of Ksh 50,000=. It is a month thereafter, and she has not raised that amount. The fact that her a daughter has remained in remand since then, lends credibility to her plea that she is not able to raise the said amount and secure the release of her daughter. While a court of law is not a court of sympathy, it is by its protocols enjoined to be empathetic and compassionate. Final Disposition 17.In the end, this Application is found to have merit, hence is hereby allowed, and in the terms hereafter stated. Which are that the 2nd Accused’s bail/bond terms imposed on 28th April 2026, are hereby reviewed, and her new terms shall be as follows:a.Her cash bail is hereby reduced to Ksh 30,000= with a surety of similar amount.b.She shall be informed of the need to be attending court as and whenever this case comes up- and of the consequences of flight or abscondment;c.Her parent shall also execute an undertaking, undertaking to as a parent supervise the 2nd Accused and to ensure she (the 2nd Accused) attends court whenever this case comes up. DATED AND DELIVERED AT KISII ON THIS 4TH DAY OF JUNE 2026.PROF (DR) NIXON SIFUNAJUDGE