https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11358

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL CASE NO. 20 OF 2015** **REPUBLIC …………………………………………………….…..………ODPP** **VERSUS** **KELVIN KIBET ROTICH ………………………………………… ACCUSED** **RULING** 1. This is a Ruling in respect of a bond application for the accused charged with murder contrary to section 203 as read with section 204 of the Penal Code. He had been on bond until 17.02.2026. The accused was about to conclude his case when he indicated that the case was superfluous since they had agreed. I indicated that circumstances had arisen that made the accused a flight risk. 2. Earlier in these proceedings, I cancelled the accused's bond and directed that he remains in custody. The reasons for that decision have been set out elsewhere, as will be apparent shortly. Subsequently, the accused applied for the reinstatement of bond. Although the accused had indicated that he had one remaining defence witness to call after exhausting the witnesses he had intimated he was calling. On the next hearing date on 07.05.2026, he closed his case. 3. The accused, through his advocate already on record, at the subsequent hearing on 11.06.2026, elected to close his defence without calling any further witness. The accused informed the court that the defence submissions were ready and undertook to file them by the close of business that day. Contrary to that undertaking, the submissions were not filed until 17.07.2026. During the proceedings on 11.06.2026, the accused’s advocates addressed the court and urged that he be released, stating that the court ought to respect their cultural practices. He informed the court that elders from his village were prepared to receive him back into the community. 4. The accused’s advocate informed the court that it was unnecessary for the accused to continue attending court because, according to him, the matter had already been resolved through traditional dispute resolution mechanisms. A number of elders were present in court in support of that position. The court enquired whether the victims or their representatives had participated in, or were represented during the alleged traditional settlement. No satisfactory response was forthcoming. The court silently noted the agency problems in the context of an alternative justice system. 5. In the absence of any evidence that the victims had voluntarily participated in or consented to such process, the court was unable to attach any legal significance to the purported cultural resolution. However, I promised to deliver a ruling today. The matter is pending delivery of the judgment on 06.11.2026. The court cannot at this stage know the outcome. 6. However, no new circumstances have been presented to warrant a departure from the court's earlier decision cancelling the accused's bond. Indeed, counsel for the accused has confirmed that, in his view, there is no need for the accused to continue attending court, on the basis that the matter has allegedly been resolved through traditional or cultural mechanisms. That assertion, if anything, reinforces the absence of any basis for revisiting the court's earlier determination on the bond. Accordingly, I find no justification for varying or setting aside the orders previously made. 7. I also note the absence of the victims, particularly the secondary victims, whose views are paramount. This is recognised in **Waswa v Republic** (Petition 23 of 2019) [2020] KESC 23 (KLR), where the Supreme Court stated: 51. Although the adversarial criminal trial process is a contest between the state, represented by the DPP, and the accused, usually represented by defence counsel and the traditional role of victims in a trial is often perceived to be that of a witness of the prosecution, it is without doubt, that owing from both the Constitution and the VPA and in particular section 9(2)(a) of the VPA, that a victim too, has the right to participate in criminal proceedings. 52. The participation of victims in criminal trial proceedings, though a novel trend in our laws, is in accord with international developments that have embraced the place of victims in the trial process. Our Constitution under article s 2(5) and (6) permits us to apply the general rules of international law and also provides that any treaty or convention ratified by Kenya forms part of the law of Kenya. 53. The role of a victim in a criminal trial is recognized in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). In this Declaration, it is evident that in the context of the criminal justice system, it is a central obligation of governments to comply with the victim's rights to access to justice and fair treatment, restitution, compensation and assistance. 66. These constitutional provisions read together with the VPA affirm that victims have rights in the Kenya criminal justice system. These rights are stipulated in section 9 of the VPA. Also, article 27 of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Both the Constitution and the VPA seek to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality. 67. The trial court being an impartial entity that oversees the progress of a case, has the ultimate function of determining the accused's guilt or innocence. Its aim is to establish the truth. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim. Victims too have a legitimate interest in the court’s exercise of its jurisdiction. The Criminal Justice System should cultivate a process that inspires the trust of both the victim and the accused. 1. Bail and bond are enshrined in Article 49 (1)(h) of the Constitution of Kenya, 2010, which states as follows: *(h) 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 accused was not denied bond. He has been on bond since 2015. Assuring the court that trial is a mere bottleneck in an already settled claim does not augur well with the administration of justice. 2. The matter having been concluded, only awaiting judgment, there is no harm in waiting for a final decision. Indeed, the judgment was delayed by pendency of this application. There are thus compelling reasons not to release the accused person on bond having had the same cancelled for supervening circumstances. However, the court shall endeavour to determine the matter as soon as practicable. 3. The prayer for reinstating bond is consequently denied. Determination 1. Therefore, the Court makes the following orders. 2. The application for bond is declined. 3. The accused shall be remanded to lawful custody at Nyeri Maximum Security Prisons. 4. Judgment on 6.11.2026. 5. Production order to issue. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **23rd** day of **July** the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered physically and through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Kihara for the State Mr. King’ori for the accused Court Assistant – Timothy