https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/217

Republic v Sairowua & 2 others (Criminal Case 785 of 2026) [2026] KEMC 217 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEMC 217 (KLR) Republic of Kenya In the Narok Law Courts Criminal Case 785 of 2026 EM Mutuku, RM July 3, 2026 Between Republic Prosecution and Wilson Sairowua 1st Accused Pion Sairowua 2nd Accused Stephen Sairowua 3rd Accused Ruling 1.Before court for determination is the issue on whether the accused persons are suitable to be released on bond. The accused persons are all facing a charge of grievous harm contrary to section 234 of the Penal Code. 2.The accused persons were was arraigned on 2nd July 2026 when they pleaded not guilty to the offence. Immediately thereafter, the prosecution objected to their release on bond stating that they had filed an affidavit detailing the objection. The affidavit is sworn by PC Leonard Ochieng, the investigating officer on 2nd July 2026. Among the grounds of objection raised in the affidavit are that:The accused persons were previously granted cash bail in Misc. Application No. E164 of 2026 on condition that they were to report to Talek Police Post every Monday but they failed to so report, and thus the cash bail should be forfeited.On 1st July 2026 while still out on bail, the 1st accused sent his herders onto the complainant’s property, an act of trespass. Investigations have established that this was a continuation of the criminal acts and hostility against the complainant.The continued unlawful conduct is a demonstration of blatant disregard of court’s authority and a propensity to commit offences.The 1st accused is also a person of interest in an ongoing investigation of alleged poisoning of game animals on 17th February 2025. During pendency of the investigations the 1st accused fled into Tanzania only to return and commit the instant offence.The above conduct demonstrates a real and substantial likelihood that the 1st accused will abscond court if released on bond.The 2nd and 3rd accused persons are employees of the 1st accused and other than the engagement with the 1st accused they have no known place of abode. They use aliases and misrepresent themselves as members of the 1st accused’s family making it difficult to trace their identities. 3.Mr. Masikonde, defence counsel cross examined the investigating officer who stated that the accused persons appeared before him on 20th June 2026 when he recorded their statements. He further stated that he was aware that the miscellaneous file had been closed but he was not present in court when it was closed. He admitted that he is not the investigating officer in the offences allegedly committed on 1st July 2026 and 17th February 2025. That he requested the accused persons to avail their national IDs but they refused. 4.Mr. Masikonde also submitted that the order in the miscellaneous file was for the accused persons to appear at the police post preferably every Monday. That the investigating officer summoned them on 20th June 2026 which was a Saturday and after recording their statements told them they needed not appear at the station on Monday. That there are no compelling reasons as to why the accused persons should be denied bond. Analysis & Determination: 5.The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter the CPC). 6.Article 49(1)(h) of the Constitution provides as follows:An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released. [emphasis mine] 7.Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align the CPC with the Constitution. It provides that:(1)Subject to Article 49 (1) (h) of the constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all relevant circumstances and in particular –a)the nature of seriousness of the offence;b)the character, antecedents, associations and community ties of the accused person;c)the defendant’s record in respect of the fulfilment of obligations under previous grants of bail; andd)the strength of the evidence of his having committed the offence.(2)A person who is arrested or charged with any offence shall be granted bail unless the Court is satisfied that the person-a)has previously been granted bail and as failed to surrender to custody and that if released on bail (whether or not subject to conditions), it is likely that he would fail to surrender to custody;b)Should be kept in custody for his own protection. 8.It is settled that in granting bond or bail a court should endeavor to preserve the liberty of the accused person who remains innocent until proven otherwise; but, this right must be balanced with the rights of the victim. See Kimanzi & another vs. Republic [2022] KEHC 12223 (KLR). 9.This court is alive to the purpose of imposing bond terms which is to secure the attendance of the accused before court during trial. 10.The accused persons have a right to be released on bond unless there are compelling reasons as why he should not be so released. The term ‘compelling reasons’ has been used in other jurisdictions to mean exceptional circumstances or unusual and extraordinary circumstances. The 10th Edition, Black’s Law Dictionary defines extraordinary as beyond what is usual, customary, regular or common. It also defines a circumstance as an accompanying or accessory fact, event or condition such as a piece of evidence that indicates the probability of an event. The dictionary goes ahead to define extraordinary circumstance as a highly unusual set of facts that are not commonly associated with a particular thing or event. 11.In Kenya, Courts have, as well, dealt with the issue. In Republic vs. Joktan Mayende & 3 Others [2012] eKLR, Mohamed Abdurrahman Said & Another vs. Republic [2012] eKLR, Wilson Thirimba vs. DPP [2012] eKLR, among others, the Courts reverted to the meaning of the word ‘compelling’ as defined in the Concise Oxford Dictionary, 9th Edition which is defined as ‘rousing strong interest, attention, conviction or admiration’. 12.Further, the High Court in Republic vs. Joshua Mueke Mutunga & 3 others [2020] eKLR in determining the criteria to be applied on whether to grant bail or bond relied on the decision by the Supreme Court of Nigeria in Alhaji Muiahid Dukubo-Asari vs. Federal Republic of Nigeria, SC 20AI /2006 which set out a similar criteria on the granting of bail by holding as follows: -…When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include among others, the following: -i.The nature of the charges;ii.The strength of the evidence which supports the charge;iii.The gravity of the punishment in the event of conviction;iv.The previous criminal record of the accused, if any;v.The probability that the accused may not surrender himself for trial;vi.The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him;vii.The likelihood of further charges being brought against the accused;viii.The probability of guilty;ix.Detention for the protection of the accused;x.The necessity to procure medical or social report pending final disposal of the case. 13.The prosecution’s grounds for objecting to the accused being released in bond are that the accused persons failed to comply with the preconditions attached to their bond in the miscellaneous file by failing to appear at the police station as directed by the court. It is also alleged that the 1st accused has committed other offences which are still pending under investigations and hence he is likely to commit further offences if released on bond. On the part of the 2nd and 3rd accused, it is alleged that they have no known place of aboard and their whereabouts are unlikely to be traced if released on bond; and additionally that they use aliases and refused to produce their national IDs. 14.I have considered the prosecution’s objection to bond and the evidence by the investigating officer, and the defence submissions. The issues of non-compliance with bond conditions ought to have been raised before the court that granted the bond and subsequently closed the miscellaneous application at the request of the prosecution. I also note that the accused persons presented themselves in court when the file was closed. Having considered the prosecutions objection, I find no compelling reason why the accused persons should be denied bond. Accordingly, the following orders issue:1.The accused persons are hereby granted bond of Kshs.150,000.00 with one surety of a similar amount, or alternative cash bail of Kshs.80,000.00 each;2.The accused persons will attend all mentions and hearings until this case is concluded;3.The accused persons shall also file in court copies of their national IDs or any other identification documents. 15.It is so ordered. READ, SIGNED AND DELIVERED IN OPEN COURT AT NAROK THIS 3RD DAY OF JULY, 2026.E.M. MUTUKURESIDENT MAGISTRATEIn the presence of:Wilson SairowuaPion SairowuaStephen SairowuaMr. Masikonde for the accused personsMr. Barongo W/B for the complainantMs. Mwihaki – prosecution counselC/A: Lewis