https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12773

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI** **CRIMINAL CASE NO E003 OF 2026** **REPUBLIC** **VERSUS** **DAVID RONO………………..……..………..………………………………. ACCUSED** **RULING** **INTRODUCTION** 1. The Accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty. He applied to be admitted to reasonable bail/bond terms. 2. The Prosecution opposed the Accused person’s application for bail/bond through the Affidavit Opposing Bail/Bond of No IPOA00271 Leah Munene of Independent Policing Oversight Authority (IPOA) that was sworn on 13th April 2026 and filed on 14th April 2026. The Prosecution asserted that the Accused person, being a serving police officer, posed a risk of interfering with the Prosecution’s witnesses who were known to him by virtue of his position. 3. It contended that his training and skills in handling firearms and covert operations increased the likelihood of witness intimidation and absconding if released on bond. It further argued that the seriousness of the murder charge, which attracted a severe penalty upon conviction, provided an incentive for him and urged the court to find that compelling reasons had been established to deny bond. 4. It asserted that although an accused person was entitled to bail or bond under Article 49(1)(h) of the Constitution of Kenya, the right was not absolute and could be limited where compelling reasons were established. It urged the court to balance the Accused person’s rights with the interests of justice and the rights of the deceased’s family under Article 26 of the Constitution by ensuring that Prosecution’s witnesses could testify without fear or interference. 5. The Accused person did not file a Replying Affidavit in response to the Affidavit Opposing Bail/Bond. 6. The Pre-Bail Report was dated 11th May 2026 and filed on 8th May 2026 **(sic).** The Prosecution's Written Submissions were dated 21st May 2026 and filed on 22nd May 2026 while those of the Accused person were dated 11th June 2026 and filed on 22nd May 2026 **(sic)**. The Ruling herein was based on the parties’ Written Submissions, which they relied upon in their entirety. **LEGAL ANALYSIS** 1. The Prosecution reiterated the averments in the Affidavit Opposing Bail/Bond. 2. It referred this court to the case of **Republic vs Jaktan Mayende & 3 Others [2012] eKLR**, **Republic vs Sawe [2024] eKLR** and **Republic vs Fredrick Ole Leliman & 4 Others[2016] eKLR** where the common thread was that the risk of witness interference as a compelling reason for denying bail. The underlying principle was that self-preservation was a natural reaction of human beings and they could go to great lengths to suppress evidence. 3. Further, it relied on **Republic vs Ahmed Mohammed Omar & 6 Others [2010] eKLR** and **Republic vs Milton Kabulit & 6 Others [2011] eKLR** where the courts held that the gravity of the charge and the severity of the likely sentence were relevant considerations in determining whether compelling reasons existed to deny bail. 4. It also submitted that the evidence against the Accused person was overwhelming and that this increased the likelihood of absconding. In support of that proposition, it relied on **Republic vs Margaret Nyaguthi Kimeu [2013] eKLR** where the court considered the strength of the prosecution's evidence alongside the seriousness of the offence in declining to admit the accused person to bail. 5. It argued that where compelling reasons had been established, the court was entitled to limit that right in accordance with Section 123A of the Criminal Procedure Code and the Bail and Bond Policy Guidelines if it established compelling reasons on a balance of probabilities while ensuring that the rights of an accused person were balanced against the public interest, including the rights and safety of victims and witnesses. 6. It pointed out that the Accused person was a serving police officer attached to Oldonyiro Police Station where the offence was allegedly committed and that the material witnesses resided within the Station's area of operation and were well known to him and his fellow officers. It argued that, owing to his position, training and familiarity with the witnesses, there existed a reasonable apprehension that he could intimidate or interfere with them either directly or through proxies, thereby undermining the administration of justice. 7. It further contended that the charge of murder attracted a severe sentence which increased the incentive of the Accused person to abscond. It submitted that the deceased died from a cervical spinal injury secondary to a single gunshot wound to the neck, demonstrating the grave nature of the offence. It argued that the evidence contained in the committal bundle was strong and overwhelming, and that the Accused person, being aware of the strength of the case against him, had every incentive to abscond if admitted to bail, a factor considered to be a compelling reason to deny bail in the case of **Republic vs Githahu Criminal Case No 9 of 2015** (KLR citation not given). 8. The Accused person submitted that Article 49(1)(h) of the Constitution guaranteed every arrested person the right to bail unless the Prosecution established compelling reasons to warrant its denial. He argued that the allegations contained in the Affidavit Opposing Bail/Bond were unsubstantiated and unsupported by evidence and that the Prosecution had failed to demonstrate circumstances sufficient to limit his constitutional right to liberty. 9. He further submitted that he voluntarily honoured the police summons when informed of the intended charge, had a fixed place of abode, strong family and community ties, remained in gainful employment and was willing to comply with any conditions imposed by the court. He relied on the favourable Pre-Bail Report, which assessed him as suitable for release on bond and concluded that he did not pose a flight risk or a threat to the community or witnesses. 10. He further submitted that the allegation that he was likely to interfere with Prosecution’s witnesses was unsubstantiated and unsupported by evidence. He argued that the Prosecution had not demonstrated any actual attempt or threat on his part to intimidate or influence witnesses and that, if necessary, the court could impose appropriate bond conditions to prohibit any contact with the Prosecution's witnesses. He further submitted that the Witness Protection Act provided adequate mechanisms for the protection of witnesses where necessary. 11. He further relied on the Bail and Bond Policy Guidelines, submitting that an accused person should not be subjected to pre-trial detention where the evidence against him was tenuous, even where the charge was as serious as murder. He contended that the Prosecution had failed to establish any compelling reason demonstrating that he would abscond or interfere with witnesses and that any legitimate concerns could adequately be addressed through suitable bond conditions. 12. He maintained that he remained presumed innocent until proved guilty and urged the court to admit him to bail on reasonable terms. 13. According to the Pre-Bail Report of Diana Wanjiku, Probation Officer, Nanyuki, the Accused person had maintained a strong bond with his family, which demonstrated that it was committed to ensuring that he fully complied with the court’s directions. It was reported that the family had no known criminal history. It was also indicated that the Accused person was employed by the National Police Service (NPS) and had not been observed to have violent tendencies. 14. The said Pre-Bail Report showed that the Accused person and his family maintained a close-knit relationship. His siblings expressed strong support for him and vouched for his release on bond. The entire family was committed to ensuring that he adhered to the court directives during trial. 15. There was no known criminal history in his family. His family described he Accused person as a law-abiding citizen who had never been in conflict with the law. They expressed shock and disbelief over the incident as he had never shown any violent tendencies. The Accused person understood the seriousness of the charge that he was facing. 16. The secondary victims were living in perpetual fear and were opposed to the Accused person being granted bail/bond. They were apprehensive that he would interfere with witnesses which could jeopardise their case and endanger their lives. They that he be transferred from Oldonyiro if the court granted him bail/bond. 17. The Investigating Officer also opposed the Accused person being granted bail/bond. He maintained that the Accused person remained a flight risk and recommended that release be considered after key witnesses had testified. 18. However, the community and the local administration were not opposed to his release on bail/bond as he was a respected member of the community. The Probation Office noted that he had a stable residence, he had no criminal history, he had strong family support, and there was no threat to public order or him being a flight risk. It, therefore, found him to be a suitable person to be released on bond but with strict bond terms such as being granted bond with a surety. 19. Article 49(1)(h) of the Constitution of Kenya, 2010 provides as follows:- **“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. Although this right was not absolute, the burden rested upon the Prosecution to demonstrate the existence of compelling reasons. In determining whether compelling reasons exist, Section 123A of the Criminal Procedure Code and the Bail and Bond Policy Guidelines required the court to consider factors including the nature of the offence, the character and community ties of the accused person, the likelihood of interference with witnesses and the strength of the prosecution’s case. 2. In the case of **Michael Juma Oyamo & Another vs Republic [2019] eKLR**, the Court of Appeal held that the right to bail could only be limited where compelling reasons had been established and that such reasons had to be forceful, convincing and founded upon credible evidence rather than mere suspicion or speculation. 3. This court found that proximity between an Accused person and witnesses could not in itself amount to a compelling reason to deny him bail/bond. Indeed, the Prosecution did not place before this court evidence of actual threat, intimidation, communication or attempt by the Accused person to influence witnesses. 4. Going further, this court acknowledged that the charge of murder was serious and that the possible sentence was a relevant consideration under Section 123A of the Criminal Procedure Code. However, the seriousness of the offence alone could not constitute a compelling reason for denying bail. Although the severity of the possible sentence was a relevant consideration, it could not be itself justify refusal of bail as was held in the case of **Republic vs Kahira & 4 Others [2025] KEHC 9338 (KLR**). 5. At the bail stage, the court was not required to determine the merits of the evidence or conduct a mini-trial as was held in **Michael Juma Oyamo & Another vs Republic** (Supra) as it could prejudice the eventual determination of the trial. 6. The Pre-Bail Report and the material placed before the court demonstrated that the Accused person had a fixed place of abode, family ties within the jurisdiction, employment history and had not demonstrated conduct suggesting that he was likely to abscond. 7. The court considered the concerns raised regarding possible retaliation and public order. While the court acknowledged that such concerns were relevant, they did not constitute compelling reasons for continued detention where they could adequately be addressed through appropriate bail conditions. 8. Having considered the totality of the circumstances, the court found that the Prosecution had failed to discharge the burden of demonstrating compelling reasons sufficient to justify continued detention of the Accused person. Indeed, the community and local administration did not find him a threat to the community and there was no threat of him being attacked. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Accused person’s application for bail was merited and the same be andis hereby allowed. The Accused person was and is hereby released on a personal bond of Kshs 800,000/= with two (2) sureties of a similar amount. 2. It is so ordered. **DATED** and **DELIVERED** at **NANYUKI** this **31st** day of **July** 2026 **J. KAMAU** **JUDGE**