Republic v Edward Manyange Moriori

her premises and to her dismay the accused removed his equipment’s and established a church a short distance from her premises and that he was still looking for the accused two accomplices 6. In response to the said affidavit , the accused filed a replying affidavit in which it was contended that ……. 7. In compliance with the bond bail policy guidelines , the court called for pre-bail report in which it was stated that the accused was the son of Jeremiah Tinega and Monica Tinega who were elderly peasant farmers, residing in Nyamira County. The accused has close ties with all family members, who were supportive and willing to ensure his court attendance. 8. It was stated that the accused was aged 32 years and at the time of the ofience was a pastor with Pick Prophetic Ministry in Pipeline Kware an d was married with two children aged seven and two years respectively. 9. On the victims concerns, it was stated that the deceased was aged 24 years, a student at Zetech University , with a very strong bond with his parents who had sufiered psychologically the loss of their only son. They opposed the release of the accused citing concerns about their security because the accused resides in close proximity to their residence though he had not been in contact with them. 10. On community ties the Chief stated that the did not know the accused , the assistant chief and the village elder from the accused rural home, however described him as a person of good standing within the community and had no objection to his release on bond. The accused mother stated that the accused prolonged custody would have financial strain on his family and ofiered alternative residence at Nyagekovoko village, Nyamosi sub County until the master is concluded. 11. It was recommended that based on the accused strong family support , fixed place of abode and guaranteed safety , the accused should be granted bond/bail. 12. On behalf of the prosecution Ms Ogweno submitted there was likelihood of interference with witnesses including the deceased grandmother whom accused had entered into a tenancy agreement , whose fear is that the accused and members of his church would interfere with her 13. It was submitted that the accused was likely to be a flight risk, and was likely to join his two accomplishes who had not been arrested . 14. On behalf of the accused, Mr. Ogola submitted that it is the accused who reported the two accomplishes to the police and that he had not run away. It was contended that the fear of the accused absconding can be mitigated by an appropriate order of reporting to either the police or court. Since the accused was a pastor , there was no reason for him to run away and that tenancy agreement does not lead to interference. Determination 15. Bond is a Constitutional Right of every accused person under Article 49 and may only be limited if the prosecutions provided to court compelling reasons which the court of Appeal in Michael Juma Oyamo & Another versus Republic (2019) eKLR stated to be forceful and convincing as to make the court feel strongly that the accused should not be released on bond, thus the accused should not be denied bond, thus the accused should not be denied bond on flimsy grounds but on real and cogent grounds that meet the constitutional standards. 16. Bond and bail policy- The Judiciary bail and bond policy guidelines provides as follows: The consideration in determining whether or not to grant bail are set out in Kenya Judiciary bail and bond policy guidelines March 2015 at page 25 which sets out judicial policy on bail as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11474/eng@2025-07-10 2

page 2 of 4

* The prosecution shall satisfy the court on a balance of probability of the existence of compelling reasons that justify the denial of bail. The prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following: - 17. a. That the accused person is likely to fail to attend court proceedings. b. That the accused person is likely to commit, or abet the commission of, a serious ofience or c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances: or d. That the accused person is likely to endanger the safety of the victims, individuals or the public or e. That the accused person is likely to interfere with witnesses or evidence or f. That the accused person is likely to endanger national security or g. That it is in the public interest to detain the accused person in custody. In this matter, the prosecution has advanced the issue of witness interference but without indicating the nature of the alleged interference and or evidence of any attempted interference as was stated by the court in the case of Republic v Dwight Sagaray [2013] KEHC 3824 (KLR)thus “ For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others. I agree with the holding in Panju Vs Republic [1973] E.A 284, where the court in dismissing the prosecutor’s fear of interference with witnesses stated that before any one can say there would be interference with vital witnesses, at least some facts should be led to the court, otherwise it is asking courts to speculate.” 18. There is no evidence tendered by the prosecution to show that the deceased grandmother is a member of the accused church and that the accused has an influence over her which will lead to a possibility of interference ,the accused has since moved his church away from the premises of the deceased grandmother and there is no evidence of any attempt by the accused and or members of his church to contact the said witness and therefore the allegations thereon by the prosecution is mere speculation , which is not compelling enough to enable the court to deny the accused the enjoyment of his constitutional right . 19. On the issue of the accused being a flight risk, the same has through his affidavit indicated that he is the one who reported his accomplishes top the police , this therefore removed the fear of the prosecution that the release of the accused will make it impossible for their arrest, in any event the incidence herein occurred almost three years ago and the prosecution has not given an account as to why the alleged accomplishes have not been arrested and therefore accused can not be denied the enjoyment of his constitutional right on an account of the action on the part of the police . 20. By reason of the matters stated herein I find and hold that the prosecution has failed to provide compelling reasons to enable the court deny the accused the enjoyment of his constitutional rights. 21. The accused shall therefore be released on the following terms and conditions : a. Bond of Kenya shillings five hundred thousand (Kshs. 500,000) with one surety of similar amount https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11474/eng@2025-07-10 3

page 3 of 4

b. In the alternative cash bail of Kenya shillings two hundred and fifty thousand (Kshs. 250,000) with two sureties of similar amount c. The accused shall report to the investigating office on the case once after every thirty (30) days the first of which shall be set by the DR of this Court while approving sureties and shall report thereto until the final determination of this cause unless ordered otherwise by the court. DATED SIGNED AND DELIVERED AT MAKADARA THIS 10TH DAY OF JULY 2025 J. WAKIAGA JUDGE In the presence of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11474/eng@2025-07-10 4

page 4 of 4