https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12600

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL CASE NO. E007 OF 2026** **REPUBLIC.........................................................................................APPLICANT** **=VERSUS=** **SHADRACK KEMBOI ORGUT................................................................ACCUSED** **RULING** **Introduction;** 1. Before this Court is the accused person's oral application to be admitted to bail pending trial. The application is premised on Article 49(1)(h) of the Constitution, which guarantees every arrested person the right to be released on bond or bail on reasonable conditions unless there exist compelling reasons to the contrary. 2. The application is opposed by the prosecution. The State relies on a replying affidavit sworn by Emmah Muriithi, an investigator with the Independent Policing Oversight Authority (IPOA), together with written submissions contending that compelling reasons exist to warrant the continued detention of the accused pending trial. 3. The accused, in turn, filed a replying affidavit disputing the allegations advanced by the prosecution and urging the Court to uphold his constitutional right to liberty. He maintains that he has a fixed place of abode, substantial family and social ties within the jurisdiction of the Court, and that he has never attempted to evade the investigative process. He further relies on a favourable pre-bail assessment report recommending his release on suitable bond terms. 4. The Court has carefully considered the oral application, the affidavits filed by the respective parties, the written submissions, the pre-bail report and the applicable constitutional, statutory and jurisprudential framework governing the right to bail. 5. The constitutional right to bail is now firmly entrenched under Article 49(1)(h) of the Constitution. It reflects the broader constitutional commitment to the presumption of innocence under Article 50(2)(a), while at the same time recognising that the administration of criminal justice may, in appropriate circumstances, justify a limitation of that right where the prosecution demonstrates the existence of compelling reasons. 6. It therefore falls upon this Court to determine whether, in the particular circumstances of this case, the prosecution has discharged the burden of establishing compelling reasons sufficient to justify a limitation of the accused's constitutional right to bail. **ISSUE FOR DETERMINATION** 1. Having considered the rival positions taken by the parties, the Court is of the respectful view that only one issue falls for determination: **Whether the prosecution has established compelling reasons within the meaning of Article 49(1)(h) of the Constitution to justify the denial of bail pending trial.** 1. The determination of that issue calls for a careful balancing of two equally important constitutional imperatives. On the one hand is the accused person's constitutional right to liberty and the presumption of innocence. On the other is the public interest in safeguarding the administration of criminal justice by ensuring that the accused attends trial, witnesses are protected, and the integrity of the criminal process is preserved. **THE APPLICABLE LAW** 1. Article 49(1)(h) of the Constitution 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."* 1. The constitutional right to bail is reinforced by the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution, which requires every accused person to be treated as innocent until proved guilty. Consequently, pre-trial detention is not intended to operate as anticipatory punishment but constitutes a limitation upon liberty which must be justified by compelling reasons established by the prosecution. 2. Section 123A of the Criminal Procedure Code complements the constitutional framework by requiring the Court, in determining whether to admit an accused person to bail, to consider all the relevant circumstances of the particular case, including the nature of the charge, the strength of the prosecution case, the character and antecedents of the accused, the likelihood of attendance at trial, and any other factor bearing upon the interests of justice. 3. The Bail and Bond Policy Guidelines further recognise that the right to bail is the constitutional norm, while denial of bail remains the exception. They identify factors that may constitute compelling reasons, including a demonstrated likelihood that an accused person will abscond, interfere with witnesses or evidence, commit further offences, or otherwise undermine the administration of justice. Whether such circumstances exist must, however, be determined on the evidence presented in each individual case. **GOVERNING JURISPRUDENCE** 1. The principles governing the constitutional right to bail are now well settled. In **Michael Juma Oyamo & Another v** Republic [2019] eKLR, the High Court emphasised that the right to bail is a constitutional entitlement which may only be limited where the prosecution demonstrates, on a balance of probabilities, the existence of compelling reasons. The burden rests squarely upon the State; an accused person bears no obligation to prove why bail should be granted. 2. Similarly, in **Republic v Dwight Sagaray & 4 Others** **[2013] eKLR,** the Court observed that allegations of witness interference must be supported by cogent and specific material demonstrating a real likelihood of interference. Mere apprehension, conjecture, or generalized suspicion, however genuinely held, cannot suffice to displace a constitutional right. 3. In **Republic v Joktan Mayende & 3 Others[2012] eKLR,** the Court reiterated that compelling reasons must be established through credible evidence placed before the Court and not by bare assertions. The assessment must remain rooted in the particular facts of each case. 4. Likewise, in **Republic v Fredrick Ole Leliman & 4 Others** **[2016] eKLR**, the Court recognised that where legitimate concerns are raised, the Court should first consider whether such concerns can adequately be addressed through appropriate bond terms before resorting to the exceptional measure of denying bail altogether. The constitutional preference is therefore to preserve liberty wherever suitable conditions are capable of safeguarding the integrity of the trial process. 1. Emerging from the Constitution, the Criminal Procedure Code, the Bail and Bond Policy Guidelines, and the foregoing authorities is a consistent legal principle: **bail is the constitutional rule; detention before trial is the exception.** It therefore follows that an accused person should only be denied bail where the prosecution places before the Court credible, specific and persuasive material demonstrating that no reasonable bond conditions can sufficiently protect the administration of justice. **ANALYSIS AND DETERMINATION** 1. The prosecution opposes the accused's release on bail on several grounds. It contends that the accused is charged with the grave offence of murder, that he presents a flight risk, that he is likely to interfere with prosecution witnesses by virtue of his position as a police officer, and that his release may undermine public confidence in the administration of justice owing to the public interest generated by the case. The Court shall consider each of these grounds against the constitutional threshold of compelling reasons. 2. **Gravity of the Charge** 19. There is no dispute that the accused faces the serious charge of murder. Upon conviction, the offence attracts severe penal consequences. The gravity of the charge and the seriousness of the potential sentence are undoubtedly relevant considerations in bail proceedings. 1. However, the seriousness of an offence, standing alone, cannot constitute a compelling reason for denying bail. Were that the position, every person charged with murder or other serious offences would automatically be disentitled to bail, a result plainly inconsistent with Article 49(1)(h) of the Constitution. The constitutional inquiry is therefore not the seriousness of the accusation per se, but whether the circumstances surrounding the charge disclose compelling reasons justifying pre-trial detention. 2. The Court must therefore proceed to examine whether the prosecution has demonstrated, through credible evidence, that the accused's release would create a real and substantial risk to the administration of justice. 3. **Whether the Accused Presents a Flight Risk** 4. The prosecution further contends that the accused is likely to abscond because of the seriousness of the charge and the severity of the sentence that may ultimately be imposed upon conviction. It further argues that, being a serving police officer, the accused possesses knowledge of investigative and policing systems which may facilitate his evasion of justice. 1. While those concerns are not frivolous and deserve careful consideration, they must ultimately be supported by objective material capable of demonstrating a real likelihood of absconding. The burden of establishing that likelihood rests upon the prosecution. 2. In the present case, the material before the Court points in the opposite direction. The accused has deponed, without rebuttal, that he has served in the National Police Service for approximately twenty-seven years, has an established residence, substantial family responsibilities comprising two spouses and ten children, and owns immovable property within the jurisdiction of this Court. It is further undisputed that he remained available throughout the investigations and did not attempt to flee despite being aware of the incident under investigation. Significantly, the pre-bail assessment report recommends his release on bond and does not identify him as presenting a flight risk. 3. In those circumstances, the Court is unable to conclude that the prosecution has discharged its burden of demonstrating that the accused is likely to abscond if released on bail. The apprehension expressed by the prosecution, though understandable, remains unsupported by sufficient objective evidence capable of displacing the constitutional presumption in favour of liberty. **Alleged Interference with Witnesses** 1. The principal ground advanced by the prosecution is the likelihood that the accused, being a serving police officer, may interfere with prosecution witnesses, some of whom are said to be civilians while others are police officers. 2. The Court readily acknowledges that witness protection lies at the heart of a fair criminal process. Where credible evidence demonstrates a real likelihood of witness interference, the Court would not hesitate to deny bail in order to safeguard the integrity of the trial. Such concerns therefore deserve anxious and careful judicial scrutiny. 3. However, the constitutional threshold is not satisfied by the mere possibility of interference. The law requires the prosecution to place before the Court credible, specific and cogent material demonstrating a real probability that the accused will interfere with identified witnesses or otherwise obstruct the course of justice. 4. Constitutional rights cannot be curtailed on the basis of speculation, generalized apprehension or suspicion, however genuinely held. The limitation of the right to liberty must be founded upon objective facts demonstrating that the apprehended risk is real, substantial and incapable of being adequately mitigated through reasonable bond conditions. 5. In the present case, the prosecution has not placed before the Court evidence of any attempt by the accused to contact, intimidate, influence or threaten any witness. Neither has it been demonstrated that any witness has expressed fear arising from conduct attributable to the accused. The prosecution's concern rests substantially upon the accused's status as a serving police officer. 6. While the accused's position within the National Police Service is undoubtedly a relevant consideration, it cannot, without more, justify the denial of a constitutional right. Membership of a particular profession or public office does not, by itself, establish a likelihood of witness interference. To hold otherwise would create an impermissible presumption against an entire class of accused persons and undermine the individualized assessment required by Article 49(1)(h) of the Constitution. 7. The Court is further satisfied that any legitimate concern regarding contact with witnesses can adequately be addressed through stringent bond conditions, including an express prohibition against any direct or indirect communication with prosecution witnesses and liberty to the prosecution to seek cancellation of bail should credible evidence of interference subsequently emerge. 8. Consequently, the Court finds that the allegation of witness interference has not been established to the constitutional threshold of compelling reasons. **Public Interest and Public Order** 1. The prosecution has also expressed concern that the matter attracted public attention and demonstrations following the incident, and that the accused's release may negatively affect public confidence in the administration of justice. 2. Public confidence in the administration of justice is undoubtedly an important consideration. Equally, however, courts are enjoined to determine bail applications according to constitutional principle rather than public sentiment. The material placed before the Court shows that although demonstrations reportedly occurred following the incident, the accused remained at liberty thereafter without any evidence that his continued presence occasioned public disorder or threatened the peace. The pre-bail assessment similarly identifies no present security concern that would render his release incompatible with public order. 3. The Court is therefore unable to conclude that the prosecution has established a present and demonstrable risk to public order sufficient to justify the continued deprivation of the accused's liberty. **Overall Determination** 1. Having carefully considered the affidavits, the rival submissions, the pre-bail assessment report, the applicable constitutional and statutory provisions, and the authorities cited, the Court finds that although the prosecution has raised legitimate concerns deserving careful judicial consideration, those concerns do not attain the constitutional threshold of compelling reasons within the meaning of Article 49(1)(h) of the Constitution. 2. This Court does not minimise the seriousness of the charge or the public interest surrounding these proceedings. Neither does it express any opinion whatsoever on the merits of the prosecution case, the credibility of the witnesses, or the guilt or innocence of the accused. Those are matters reserved exclusively for the trial after all the evidence has been received and tested through the adversarial process. 3. The Court's task at this stage is confined to determining whether the constitutional right to liberty should be curtailed before trial. On the material presently before it, the Court is not satisfied that the prosecution has discharged the burden of establishing compelling reasons that cannot adequately be addressed through appropriate bond conditions. **DISPOSITION** 1. In light of the foregoing analysis, this Court is satisfied that the prosecution has not established compelling reasons within the meaning of Article 49(1)(h) of the Constitution to warrant the continued detention of the accused pending trial. Although the concerns raised by the prosecution are neither frivolous nor unfounded, they have not been supported by sufficiently cogent, specific and credible material capable of displacing the constitutional presumption in favour of liberty. 2. The Court is mindful that the offence facing the accused is grave and that the public has a legitimate interest in seeing that justice is done. Equally, however, the administration of justice is best served when constitutional rights are upheld in accordance with the law. The seriousness of the charge cannot, without more, justify the denial of bail, nor can generalized apprehensions take the place of proof. The Constitution requires the Court to determine each application on its own merits and upon the evidence presented. 3. The Court is equally satisfied that any residual concerns identified by the prosecution can adequately be addressed through carefully tailored bond conditions designed to secure the accused's attendance at trial, safeguard the integrity of the proceedings, and protect prosecution witnesses. Such an approach accords with the constitutional preference for preserving liberty while ensuring the proper administration of criminal justice. 4. For the avoidance of doubt, nothing contained in this ruling should be construed as expressing any opinion on the merits of the prosecution case or the defence available to the accused. The observations made herein are confined exclusively to the determination of the bail application. The guilt or innocence of the accused shall be determined solely upon the evidence that will be presented during the trial. 5. Accordingly, the prosecution's objection to the accused's release on bail is without merit and is hereby dismissed. **ORDERS** 1. Consequently, the Court makes the following orders: 2. The accused, Shadrack Kemboi Orgut, shall be released on bond pending trial upon executing a bond of Kenya Shillings One Million (Kshs. 1,000,000) with two (2) sureties of a similar amount, to be approved by the Deputy Registrar of this Court. 3. In the alternative, the accused may be released upon depositing cash bail in the sum of Kenya Shillings Five Hundred Thousand (Kshs. 500,000). 4. The accused shall not, whether directly or indirectly, contact, communicate with, intimidate, influence or interfere with any prosecution witness in any manner whatsoever. 5. The accused shall provide to the Court and to the investigating officer his current residential address and telephone contact and shall promptly notify the Court of any change thereof during the pendency of the trial. 6. The accused shall attend Court punctually on every hearing date unless excused by prior order of the Court. 7. In the event of any breach of these bond terms, or upon credible evidence of witness interference, intimidation, or any conduct prejudicial to the administration of justice, the prosecution shall be at liberty to move the Court for review or cancellation of the bond. 8. The Deputy Registrar shall prioritize the hearing of this matter so that the trial proceeds expeditiously in keeping with the constitutional imperative of a fair and timely trial. It is so ordered. **Delivered, Dated and Signed on This 29th Day of July, 2026 at Eldoret** **………………………………** **J. M. CHIGITI (SC)** **JUDGE**