https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12420

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKADARA** **MAKADARA HIGH COURT** **CRIMINAL CASE NO. E018 OF 2026** **REPUBLIC…………………………….….………................…APPLICANT** **VERSUS** **HAMED JOHN SOKOINNE…………………………………RESPONDENT** **RULING** 1. The accused person, Hamed John Sokoine is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are, That on 25/2/2026 at Njathaini area in Nairobi County within Republic of Kenya the accused murdered VALARY ATIENO OKUMU. He pleaded not guilty. 1. The state filed an affidavit in opposition of bond sworn by CPL. Joseph Mutonya Johathan. He stated that the accused person had no fixed abode and was of Tanzanian Nationality. 2. He was of the view that the absence of a fixed abode was a compelling reason to support that he was a flight risk. 3. The investigating officer further stated that the accused person was at the time of arrest living with one of the key witness. That there was a likelihood of witness interference. 4. I directed that a pre-bail report be filed. None was forthcoming when the case was subsequently mentioned. Ms. Ouko made oral submissions. she stated that the accused person was a family, and with a fixed abode. That being a Tanzanian did not deprive him of the right proved under the constitution. That no compelling reasons have been given to deny him bond. 5. Mr. Ochieng reiterated the contents of the affidavit by the investigating officer saying that the issues raised had not been responded to. 6. Article 49 (b)(h) of the Constitution guarantees the right to bail where compelling reasons are demonstrated by the state. 7. The article provides ‘(1)(h) an accused person has the right to be released on bond and bail on reasonable conditions find a charge and a trial unless there are compelling reasons not to be released.’ 8. On criminal was amended vide Section 123 (a) to align it with the constitution. The section provides: - ‘1. Subject to the Article 49 (1)(h) of the Constitution and not withstanding Section 123 in making a decision on bail and bond the court have regards to all relevant circumstances and in particular: - 1. The nature and seriousness of the offence. 2. The character, anticipates, associations and community ties of the accused person. 3. The defendant’s record in respect of the fulfilment of obligations under previous grants of bail and 4. The strength of the evidence of his having committed the offence. (2) A person who is arrested and 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. 10. As one decisions the question of bail/bond it has to be borne in more that the accused is presumed innocent until proven guilty. He should therefore be released on bond unless compelling reasons are given. In ***Republic versus Danison Mgungya & another (2010) eKLR Ibrahim J (as he then was)*** ‘The result of the foregoing is that a murder suspect has a constitutional right to be released on bail.’ This is an inalienable right and can only be restricted by the court. If there are compelling reasons for him not to be released. 11.The criminal procedure code and the constitution do not define what compelling reasons are. The 10th edition of Black’s Law Dictionary defines extra ordinary circumstances as highly unusual set of facts that are not commonly associated with a particular thing or event. 12. we have in jurisdiction developing bail and bond policy guidelines. The guidelines flesh out the provisions and Section 123 A. 13. I associate myself with the views expressed by Muriithi J in Kelly Wales Bunjika versus Republic (2017) eKLR where he said ‘it is clear that the primary consideration for bail is whether the accused will attend the trial for the charges facing him and it must therefore be a compelling reason if it is destitution that the accused person is likely to fail to attend court proceedings. The question in this matter becomes whether there is a balance of probabilities evidence that the accused is likely to abscond. The accused claims to have a good defence to the charge of escape from custody. The nature of such defence and evidence is not disclosed. The accused mainly ascents his constitutional right to be granted bond/bail on reasonable and favourable terms. 14. In the present case the main fear raised is that the accused person is a Tanzanian citizen. That on its own does not disqualify being from the right to bond. Article 20 (2) of our constitution states: - ‘(2) every person shall enjoy the rights and fundamental freedom on the bill of rights to the greatest extent consistent with the nature of the right and fundamental freedom’ 15. It was not demonstrated that the accused was on transit and visiting the country. Even the affidavit by the investigating officer talks of him cohabiting with a key witness. This suggests that the has been in the country for a while. There is no suggestion that he had turned to flee the country. This limb of opposition does not demonstrate a compelling reason. 16. it is stated in the affidavit that the accused person lives with a key witness. That he may interfere. The assumption is that the witness freely recorded a statement expressing any fear of interference. The investigating officer has not stated that the said witness has sought to withdraw from being a witness. That witness is not then named. I find this fear to be unsubstantial. 17. In summary no compelling reasons have been demonstrated to deny the release of the accused person on bond/bail. 18.The court is directed to release the accused persons on reasonable terms. What is reasonable is determined by the circumstances of the case. The guidelines under the bail and bond policy guidelines come into play. The Prosecution under Section 123A are also taken into consideration. 19. In the case I will admit the accused person to a bond of the sum of Kshs. 500,000/= with a Kenyan Surety of similar amount. The accused person is further ordered not to communicate and/or interfere with the witnesses. It is so ordered. **Hon. Alex K. Ithuku** **JUDGE** **21/07/2026** **Court** Ruling delivered in virtual court. Ms. Ouko for the accused. Mr. Ndiema for the state. **Hon. Alex K. Ithuku** **JUDGE** **21/07/2016**