https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12873

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KILGORIS** **HIGH COURT CRIMINAL CASE NO. E006 OF 2026** **CORAM: HON. CHARLES KARIUKI, J.** **REPUBLIC .................................................................................................... PROSECUTOR** **VERSUS** **BENARD KIPNGETICH KOECH ................................................................1ST ACCUSED BENJAMIN LEMASHON SEPEPIARI ......................................................2ND ACCUSED JACKSON LEKISHON KIRIONKI ............................................................3RD ACCUSED** **RULING ON BOND AND BAIL** **Introduction** 1. The three accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information are that on 3rd June 2026, at Kilena Sub-location in Shartuka Location, Narok County, they jointly murdered Joshua Seroo. 2. Each accused person pleaded not guilty and applied to be released on bond pending trial. 3. The prosecution opposed their release and relied upon an affidavit sworn by the investigating officer, Abdullahi Hassan, together with the respective pre-bail assessment reports prepared by the Probation and Aftercare Service. **The parties’ respective positions** 1. At the hearing on 31st July 2026, learned prosecution counsel, Mr Okeyo, relied upon the investigating officer’s affidavit and the pre-bail assessment reports. He submitted that the material placed before the Court disclosed compelling reasons for denying the accused persons bond. 2. The prosecution particularly drew the Court’s attention to paragraph 8 of the investigating officer’s affidavit, where it was averred that the 2nd and 3rd accused persons have other pending criminal cases before the Kilgoris Law Courts, namely Criminal Case No. 701 of 2025, Criminal Case No. E396 of 2026 and Criminal Case No. E246 of 2025. 3. The prosecution further averred that the 1st accused person is facing a separate murder charge in High Court Criminal Case No. E010 of 2024. 4. Mr Ochwang, learned counsel watching brief for the family of the deceased, associated himself with the submissions of the prosecution. The Court was also informed that the family of the deceased had filed an affidavit opposing the release of the accused persons. 5. Mr Kiprotich, appearing for the 2nd and 3rd accused persons while holding brief for Ms Ireri, submitted that the prosecution had not established any compelling reason for denying the accused persons bond. 6. Counsel argued that, although the 2nd and 3rd accused persons have other pending criminal cases, they have faithfully attended court and have not breached any of the bond terms imposed in those proceedings. Their record of compliance, counsel submitted, demonstrates that they are not flight risks. 7. The defence further submitted that the existence of other pending criminal proceedings does not, by itself, amount to a compelling reason. The accused persons remain presumed innocent in all the cases and have undertaken to comply with any conditions that this Court may impose. 8. In respect of the 1st accused person, the defence acknowledged the existence of High Court Criminal Case No. E010 of 2024 but urged the Court to impose reasonable bond terms rather than deny him his constitutional right to liberty. **Pre-bail assessment reports** 1. The pre-bail assessment report concerning the 1st accused person recommends that he should not be released on bond at this stage. The report proposes that the question of bond may be reviewed at a later date, at the Court's discretion. 2. The reports concerning the 2nd and 3rd accused persons do not make adverse recommendations. They leave the decision on whether to release them on bond to the Court's discretion. 3. A pre-bail assessment report is an important aid to the Court. It provides information on an accused person’s social background, community ties, antecedents and the views of the victim’s family and the community. Its recommendations, however, are not binding upon the Court. The ultimate responsibility of determining whether compelling reasons exist rests with the Court. **Issue for determination** 1. The sole issue for determination is whether the prosecution has established compelling reasons justifying the denial of bond to any or all of the accused persons. **Applicable law and principles** 1. Article 49(1)(h) of the Constitution guarantees every arrested person 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 right to bond applies to every accused person irrespective of the nature or seriousness of the charge. The right is, nevertheless, qualified and may be restricted where the prosecution establishes compelling reasons. 2. Article 50(2)(a) of the Constitution further guarantees every accused person the right to be presumed innocent until the contrary is proved. Pre-trial detention must not, therefore, be employed as punishment before conviction. 3. Section 123A (1) of the Criminal Procedure Code requires the Court to consider all relevant circumstances, including: 4. the nature and seriousness of the offence; 5. the character, antecedents, associations and community ties of the accused; 6. the accused person’s record in fulfilling obligations under previous grants of bail; and 7. the strength of the evidence supporting the charge. 8. In ***Michael Juma Oyamo & Another v Republic [2019] KECA 953 (KLR),*** the Court of Appeal affirmed that compelling reasons must be forceful and convincing. Bail should not be denied on flimsy grounds but upon real and cogent grounds meeting the constitutional threshold. 9. Similarly, in ***Republic v Patius Gichobi Njagi & 2 Others [2013] eKLR*,** the Court held that where the State opposes bond, it must go beyond speculation and place before the Court persuasive material founded upon facts and circumstances particular to the accused person. 10. The primary purpose of bond is to secure the accused person’s attendance at trial. Other relevant considerations include the possibility of interference with witnesses or evidence, the likelihood of committing another serious offence, the safety of the accused and victims, and the proper administration of justice. **Analysis:** 1. The accused persons face the grave charge of murder. The seriousness of the charge and the severity of the possible sentence are relevant considerations because they may provide an incentive to abscond. They do not, however, standing alone, constitute compelling reasons for denying bond. 2. The principal ground advanced by the prosecution is that each accused person has other pending criminal proceedings. Pending charges may properly be considered under section 123A of the Criminal Procedure Code, particularly when assessing the accused person’s antecedents and the likelihood of committing another serious offence. 3. Nevertheless, a pending charge is not equivalent to a conviction. Denying bond solely because an accused faces another unproven charge would offend the constitutional presumption of innocence. The prosecution must demonstrate how the circumstances surrounding the other cases create a real and identifiable risk in the present proceedings. 4. Regarding the 2nd and 3rd accused persons, it was not disputed that they had previously been released on bond in the pending cases and had continued attending court as required. No evidence was placed before this Court demonstrating that they had absconded, breached their bond terms or interfered with witnesses in those proceedings. 5. Their record of compliance is a relevant consideration under section 123A(1)(c) of the Criminal Procedure Code. It weighs in favour of their release, subject to appropriate conditions. 6. In respect of the 1st accused person, the Court has considered the adverse recommendation contained in his pre-bail assessment report and the existence of High Court Criminal Case No. E010 of 2024. The report’s recommendation must, however, be examined alongside the evidential material placed before the Court. 7. The prosecution did not demonstrate that the 1st accused person had breached any previous bond terms, failed to attend court, threatened a witness or attempted to evade the administration of justice. The recommendation that he should not be released on bond cannot, without cogent supporting facts, displace his constitutional right under Article 49(1)(h). 8. The Court has also taken account of the concerns expressed by the family of the deceased. Those concerns are understandable and must be treated with due respect. Victims are entitled to have their views considered under Article 50(9) of the Constitution and the Victim Protection Act. 9. The views of the victim’s family do not, however, constitute an automatic bar to the grant of bond. They must disclose an objectively verifiable risk, such as threats, intimidation, witness interference or danger to the safety of the victims. On the material presently before the Court, no specific act of interference, intimidation or threat has been attributed to any of the accused persons. 10. After evaluating the matters raised cumulatively, the Court finds that the prosecution has not established, on a balance of probabilities, compelling reasons sufficient to justify the complete denial of bond. The identified risks can adequately be addressed through stringent bond conditions. **Determination and orders** 1. Accordingly, the bond applications are allowed on the following terms: 2. Each accused person shall execute a bond of **Kenya Shillings One Million (KShs.1,000,000)** with one surety of a similar amount. 3. The proposed sureties shall be examined and approved by the Deputy Registrar of this Court. 4. Each accused person shall attend Court on every scheduled date and whenever otherwise required by the Court. 5. The accused persons shall not, directly or indirectly, contact, threaten, intimidate, influence or interfere with any prosecution witness or member of the deceased’s family. 6. The accused persons shall not visit the residence of the deceased’s family or any prosecution witness unless authorised by the Court. 7. Each accused person shall provide the investigating officer and the Deputy Registrar with his residential address and telephone contact details before release. 8. The accused persons shall not change their respective places of residence without first notifying the investigating officer and the Deputy Registrar. 9. The accused persons shall not leave the jurisdiction of this Court without prior permission. 10. Each accused person shall report to the investigating officer or the officer commanding the nearest police station once every month until further orders of the Court. 11. The accused persons shall continue complying with the bond terms imposed in their respective pending criminal cases. 12. Any attempt to interfere with witnesses, failure to attend court, commission of another offence, or breach of any of the foregoing conditions shall constitute sufficient ground for cancellation of bond and remand in custody pending trial. 13. The investigating officer shall explain these conditions to each accused person upon release and shall promptly report any breach to the Court. 14. The accused persons are reminded that they remain under trial and must ensure that their conduct does not obstruct or undermine the due administration of justice. 15. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THROUGH MICROSOFT TEAMS THIS 14TH DAY OF AUGUST 2026.** .............................................................. **CHARLES KARIUKI** **JUDGE**