https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12176

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. E014 OF 2026** **REPUBLIC ……………………………………..………………………..……….. PROSECUTOR** **VERSUS** **CHARLES WUMBA SASALA ………………………….……………………….. 1ST ACCUSED** **GIDEON MULIA SASALA …………………..……….……………………….. 2ND ACCUSED** **RULING ON BAIL** 1. The Accused persons who are facing a murder charge and two counts of assault have applied for admission to bond pending their trial having been in custody since 18th April 2026 when they were arrested. 2. The application for bond is opposed by the prosecution who have filed an affidavit sworn by PC Dancan Wafula on 2nd April 2026 in which he depones that the Accused persons, who are stepbrothers to the deceased pose a flight risk due to the severity of punishment of the offence and also pose a direct threat to the witnesses, especially the close relatives who are key witnesses in the case which includes their stepbrothers and who they are likely to intimidate. 3. To assist in making its determination, the court called for pre-bail reports which were filed on 4th May 2026 and recommended bond provided the Accused persons remain in their maternal uncle’s home at Chimuche until peace prevails in the area because of the public outcry and bitterness amongst the stepsiblings. 4. The pre-bail reports indicate that the Accused persons are elderly, aged above 60 years with heavy family responsibilities. The Accused persons’ homes were destroyed after the incident and the family members scampered for their lives and are currently being accommodated away from their home. 5. On behalf of the Accused persons, Ms. Repha disputed the deposition in the Affidavit that the Accused persons are a flight risk. She submitted that the 2nd Accused has two (2) wives and eleven (11) children and owns three (3) parcels of land located in three different localities. She further submitted that there was insufficient evidence that the Accused persons were likely to intimidate the witnesses as the land dispute was between the deceased and the Accused persons and not the witnesses. 6. Mr. Masinde, who represents the victim’s family submitted that he had concerns regarding the safety of the victim’s wife as the incident arose from a land dispute. He further stated that Chimuche is a neighbouring sub-County within the same locality as the victim’s home and may not eliminate the fear from the victim’s mind. 7. When placed on the stand, the victim’s wife said that no Probation officer interviewed her before writing the pre-bail report. Contrary to Ms. Repha’s claim that she did not reside in the locality, she said that she lives in Kuvasali area which is a walking distance from Chimuche and that her home is a plot away from the disputed ancestral land. She said that she lives in fear as the other two suspects who were still on the run kept threatening her. 8. Article 49 (1) (h) of the Constitution guarantees the Accused persons the right to bond or bail unless there are compelling reasons to deny the same. The general principles guiding the bail and bond decisions are that every Accused person is presumed innocent until proved guilty and pretrial detention is a violation of an accused person’s right to liberty. The right to bond and bail is therefore, a vital component of the right to a fair trial. In the premises, to commit a suspect to custody is inimical to the accused person’s non-derogable rights as there is no reversing pretrial detention in the event of a final verdict of innocence. 9. Under the Judiciary Bail and Bond Guidelines, the objective of bail and bond is to ensure that accused persons attend trial by granting them reasonable bond terms. However, bail determination must balance the rights of the accused person vis-à-vis the interest of justice and the rights of the victims. 10. In considering whether to grant bail, the court is guided by the factors set out in paragraph 4.9 of the Bail and Bond Policy Guidelines as well as Section 123A (1) of the Criminal Procedure Code and which include inter alia, the nature of the charges and the seriousness of the consequential punishment thereof, the strength of the prosecution’s case, the character and antecedents of the accused, the likelihood of interfering with witnesses, the need to protect the victims of the crime, the relationship between the accused person and potential witnesses, whether the accused is a flight risk and/or is gainfully employed, protection of the accused person, and whether the release of the accused person will disturb public order or undermine public peace or security. 11. It is incumbent on the Prosecution to satisfy the court, on a balance of probabilities, that there exist compelling grounds to deny an accused person bond. Section 123A (2) of the Criminal Procedure Code provides:- ***“(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 has 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.”*** 1. Regarding the Accused persons’ application, the court finds that the allegations that they are flight risk is baseless and is not therefore a reason for denial of bond. However, the court finds that there is a possibility of breach of the peace if the Accused persons were released as is evident from the pre-bail report that recommends that they should be released on condition that they resettle in their maternal home at Chimuche until peace is seen to prevail in their home. The victim’s advocate submitted that Chimuche is a walking distance from the Accused persons’ home. In my considered view, there is an imminent risk that could lead to a breach of peace and threat to public order in the event the Accused persons are released at this juncture. It is acknowledged that the Accused persons’ homes and those of their family members were destroyed by irate members of the public after the incident. The court must be cautious before admitting the Accused persons to bail. 2. Additionally, the fact that the witnesses are stepbrothers and the victim’s wife who is also a step sister-in-law means there is a possibility of witness interference through threats and intimidation. 3. Ultimately, the court finds that there are compelling reasons to deny the Accused persons bond at this juncture. The court directs that the prosecution ensures the attendance of the witnesses from the family of the deceased at the first hearing after which the application for bond shall be reconsidered. Dated, signed, and delivered at Kakamega, this 31st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Chala for the Prosecution Mr. Mundia for the Accused persons Court Assistant: Polycap