https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11922

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO. E016 OF 2026 REPUBLIC ………………………………..………….....…..PROSECUTION VERSUS DAVID KIGOMA ONGUTI …………….…..…………..…………ACCUSED RULING (ON THE ACCUSED PERSON’S ORAL APPLICATION FOR BAIL BOND MADE ON 23RD JUNE 2026 AND 23RD JULY 2026) Introduction 1. This Ruling relates to the oral applications for bail/bond for the remainder of the trial. The applications were made orally in court on two dates, 23rd June 2026 and reiterated on 23rd July 2026. The reason for the Application being made twice was that after the first oral application on 23rd June 2026 the Court called for a Pre-Bail Report with respect to the Accused Person, and thus the second oral application was made and argued on 23rd July 2026 in light of the Pre-Bail Report dated 24th May 2026 which was submitted to court on 16th July 2026 and stamped received on that date. 2. The Prosecution did not file any affidavit in opposition and this non- opposition was noted in the Bail Report. However, at the hearing of 23rd July 2026 Ms. Caroline Muriu, Learned Prosecution Counsel, expressed the State’s concern as to the safety of the Accused Person HCCR. NO.E016 OF 2026 RULING - Page 1 of 7 if he were to be released on bail/bond to the local area where he allegedly committed the homicide in question. The Prosecution Counsel also expressed a concern about how the court would secure the attendance of the Accused Person in light of the Pre-Bail Report’s observations that the Accused Person and his family are persons of very modest financial means. 3. Ms. Loise Gathoni Njuguna, Learned Defence Counsel, began by stating that the Prosecution are not opposed to the grant of Bail/Bond. Furthermore, while stating that she had not seen the Pre- Bail Report, she sought to assuage the concern on securing the attendance of the Accused Person by stating that: a) The Accused Person has a known and fixed abode; b) He has been a longstanding resident of Uthiru, a locality he has lived in for the last 7-8 years; c) He has steady employment as a garbage collector; d) Has strong ties to the community; e) He and his family are willing to provide security and a surety if called upon to do so; and, f) The Accused Person shall abide by all the terms and conditions if granted bail/bond. 4. Ms. Gathoni proposed a Cash Bail of KShs.50,000.00. 5. On his part, and in response to questions from the Court, the Accused Person proposed a lesser amount, between KShs. HCCR. NO.E016 OF 2026 RULING - Page 2 of 7 20,000.00 and KShs.30,000.00, as Cash Bail. The Accused stated that were he to be required to refrain from living in or working in Uthiru by Order of this Court he would relocate and find gainful employment elsewhere. 6. The Pre-Bail Report dated 24th May 2026 is positive. Its penultimate paragraph is worth quoting in full as it eloquently summarizes the position of the Probation Officer assigned to inquire into the suitability or otherwise of the Accused Person for the grant of bail/bond. It reads, verbatim: “From the social inquiry findings, the accused has no history of bail/bond admission; he has no inherent challenges that might hinder his adherence to his bail/bond conditions; if granted bail/bond he will be attending court from the court’s jurisdiction; his family is willing to support him through the trial process but have no deposit or available cash to bail out the accused; the victim’s family are undecisive but other community organs have no contention to the accused being granted bail/bond. From the assessment the accused’s bail/bond determination no practical bail/bond mechanisms have been established.” 7. The right to bail or bond is a fundamental constitutional guarantee aimed at balancing an accused person's right to liberty with the interests of justice. Under Article 49(1)(h), every arrested person the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons to HCCR. NO.E016 OF 2026 RULING - Page 3 of 7 justify continued detention. 8. Section 123A of the Criminal Procedure Code further guides the Court to consider, inter alia, the nature and seriousness of the offence, the character of the accused, the likelihood of absconding, and the potential interference with witnesses when considering the question of bail/bond with respect to an accused person. 9. The sole issue for determination is whether in the circumstances of the matter it is fit, just, and proper for the Accused Person to be granted bail/bond. 10. In the present instance, the Probation, the Prosecution, and the Defence all agree that the Accused Person is suitable for a grant of bail/bond but they all also agree he does not have the financial means to deposit the usual amount and nature of security that is ordered in a murder trial. 11. Being unable to afford the usual amount and nature of security that is ordered in a murder trial is not a compelling reason for declining to grant bail/bond. To find otherwise would be to reduce the right under Article 49(1)(h) from a right open and available to all to a privilege reserved for the financially well-off and landholders. 12. The KShs.20,000.00 – KShs.30,000.00 the Accused Person has proposed may not be seem like a huge sum to persons blessed with financial stability but to the Accused Person and others in similar financial positions it is a veritable fortune. A bail sum that would HCCR. NO.E016 OF 2026 RULING - Page 4 of 7 secure the attendance of the Accused Person for the remainder of the trial is one in which to him and his circumstances is akin to the usual amount and nature of security that is ordered in a murder trial for persons of greater financial strength. What is ‘reasonable’ in terms of bail/bond terms must be subjective to the particular accused person(s) before the court. 13. With the presumption of innocence in place, I also find no reason to bar the Accused Person from residing in the locality. He should have the flexibility to move to another area, if he needs to seek work or feels his safety is at risk; but without being too far from this court station. 14. In the circumstances, the Court finds that no compelling reasons have been established to justify denial of bail/bond, and that the Accused Person should be granted bail on reasonable terms. 15. For the avoidance of doubt, the grant of bail/bond is not an acquittal nor is it a statement that an acquittal is likely. It is merely a temporary release of an accused person pending full trial in line with the constitutional guarantee of the grant of the same in appropriate circumstances. Disposition 16. Consequently, the applications for bail/bond made orally in this matter be and are hereby allowed on the following terms: a) The Accused Person, DAVID KIGOMA ONGUTI, is HCCR. NO.E016 OF 2026 RULING - Page 5 of 7 granted bail in the amount of KShs.60,000.00 with one surety of a similar amount; b) The Accused Person shall not leave the Nairobi Metropolitan Area, defined as the Nairobi City County and the Counties directly bordering it, without the leave of this Court; c) The Accused Person shall provide two adult contact persons, both of whom must blood relatives; d) The Accused Person shall attend Court whenever he is required to until the case is fully determined; e) The Accused Person shall inform the Investigating Officer of where he shall be residing and shall update the Investigating Officer of any change residence; f) The Accused Person shall inform the Investigating Officer of his mobile telephone number(s) and shall update the Investigating Officer of any new number(s) that he may acquire; g) The Accused Person shall report to DCI – Kabete once a week, which shall be varied to once every fortnight after the Accused Person has reported there 10 consecutive times; h) The Accused Person is ordered not to communicate with any family member of the Deceased Person or HCCR. NO.E016 OF 2026 RULING - Page 6 of 7 any prosecution witnesses or to in any way interfere with the witnesses or evidence herein; i) The Accused Person not apply for any passport or international travel document without the leave of this Court, and if he already possess the same it(they) shall be deposited in Court for the duration of the trial within seven (7) days of this Ruling; and shall only be released upon successful application to Court ; and, j) Failure to abide with the conditions above will render the bail terms cancelled, and the non-compliant accused person shall be remanded in custody for the remainder of the trial. It is so ordered. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 30TH DAY OF JULY 2026 …………………………………………………………… BAHATI MWAMUYE MBS JUDGE Delivered In the presence of: Accused Present In Court Prosecution – Ms. Caroline Muriu Defence Counsel – Ms. Loise Gathoni Njuguna Court Assistant – Mr. Martin and Mr. Austin HCCR. NO.E016 OF 2026 RULING - Page 7 of 7