Republic v Onesmus Manoti Makworo

5. According to the Investigating Officer, upon conclusion of investigations, he has sufficient evidence to connect the accused person with the ofience of murder, in respect of the two victims based on the witnesses statements and documentary evidence that has been considered by the Director of Public Prosecutions. He holds that key prosecution’s witnesses reside within the same locality with the accused person and there is thus a high possibility of interference with them by him. The Investigating Officer has also deponed that the deceased persons were a 21 year old mother and her six months old son who were strangled and sufiocated to death by the accused, who was the boyfriend to Ruth Waithera Anyango, the 1st deceased which is a great concern in view of the rising cases of femicide in the country. 6. The Investigating Officer goes on to contend that the accused person is a flight risk since he was arrested three days after the commission of the ofience while in one of the houses in Nyambare area and he never presented himself to the police, hence his fixed place of aboard is now unknown. He further holds that if the accused is convicted he is likely to be sentenced to serve the maximum sentenced in view of the severity and circumstances of the ofience. That the accused is even at risk of being lynched by members of the public due to the circumstances surrounding the ofience. 7. The Investigating officer holds that although the ofience is bailable the same is not a matter of right but of discretion and in this case it is necessary that the accused person be detained since there are compelling reasons as to why the accused person should not be released on bail/bond, which include the gravity of the ofience, the strength of the prosecution’s case, circumstances surrounding its omission and penalty provided for in law. 8. The court called for a Social Inquiry to be conducted and a Pre-bail report be filed. The Bail Information Report was filed on 5th February, 2025 and therein the probation officer took into consideration the accused looked at the accused person’s family circumstances, his personal circumstances and means, drugs and substances, previous adherence to bond/license terms, seriousness of the ofience, victim’s concerns and sentiments, community ties and views of the investigating officer, bail sureties and securities, in coming up with its conclusion and recommendations. 9. According to the Probation Officer in his findings, the accused is twenty-two (22) year old young man and the only child of his parents of humble background and who have invested their all in him, despite their limited resources. The Probation Officer also established that the family is close-knit and share strong family bonds and support system. The Probation Officer further established that the accused’s father is the secretary of the Men’s Fellowship in the PAG Church and thus he has been raised well with the adherence of doctrines of the said church. According to his parents, the accused is a humble human being who has never interacted with the law hence does not have a criminal record. The family contends that the deceased was known to them as she was his fiancée and they had every good interaction when she visited with their grandchild who was then one month old. And just like the accused, they plead for his release on lineinent bond terms and that his fathr has expressed willingness to stand as his surety while the mother has pledged to be the contact person. 10. Upon interviewing the community through the local administration, it is confirmed that the accused’s family is unknown for good behaviour as his father is a Nyumba Kumi representative it would be will for the community in the capacity for eight (8) years. That for this reason, the accused is not a flight risk and notes the mother and grandmother of the victims herein, the tragic and devastating loss of the two has caused her so much pain that has left her deeply pained. And due to this, they are still mourning the los of their kin who lost their lives in a traumatic and untimely manner, hence prays for justice and is opposed to accused person being released on bond. 11. In her recommendation, the Probation Officer has stated that since the accused person has a strong family support, with no criminal record and having vowed to adhere to condition that may be set by https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13970/eng@2025-04-09 2

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the court, even the victim’s family seeks justice, the accused could be considered for release on bond/ bail terms. Determination 12. In considering whether or not to release the accused person on bond/bail terms sought for by himself through his counsel, the court has read through the affidavit to opposed bail for accused filed on 5th May, 2025 and sworn by the Investigating Officer, No.84709, Seargent Robert Chalulot and the Prebail information report filed by the Probation Officer, Beatrice Kagwiria on even date. To begin with, it is important to appreciate the law on bond/bail as provided for by our Constitution’s statute. 13. t is trite that the right to Bail and bond is provided for under Article 49(1)(h) of the Constitution it which states that: ‘An accused person has the right … (h) 14. to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.’ From this provision, what a court is required to consider is either allowing or granting an accused person release on bond is whether the reasons tendered by the prosecution are compelling enough to warrant the accused being denied release on bail and bond terms. In the case of Republic –vs- Joseph Thiongo Waweru & 17 Others [2017] eKLR defined compelling reasons as follows: “ The Constitutional standard for denying bail is “compelling reasons” test. The burden is on the Prosecution to establish the existence of the “compelling reasons” that would justify denial of bail. Our emerging jurisprudence on the question is clear as to the kind of evidence needed to establish the “compelling reasons”: The evidence presented must be “cogent, very strong and specific evidence” and that mere allegations, suspicions, bare objections and insinuations will not be sufficient.” 15. Also under Section 123A of the Criminal Procedure Code, various factors which ought to be considered in bail and bond application have been set out to include:(1) (2) 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 the relevant circumstances and in particular— (a) the nature or seriousness of the ofience; (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; and; (d) the strength of the evidence of his having committed the ofience; A person who is arrested or charged with any ofience 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13970/eng@2025-04-09 3

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16. In this case, the court has considered the oral application made by the Accused person, the Affidavit to oppose bond by the Prosecution and the Pre Bail Report filed by the Probation Officer. Having considered the reasons advanced by the Investigating Officer in being opposed to the release of the accused person on bond/bail terms as against the recommendations by the Probation Officer in the Pre-bail report filed here, I find that the accused person having been arrested three days fafter the commission of the ofience at a place other than where the ofiences had been committed, hence depicting him as a flight risk, being the compelling reason to deny him release on bond/bail terms. It is worth appreciating that the accused hails from Kisii and had just moved to Lari for work when the ofience for which he is charged with was committed. 17. For the above reason, this court finds that at this point in time, it will be prudent to deny the accused release on bond until the key prosecution’s witnesses testify and a change of circumstances is demonstrated. 18. Therefore, the accused person Onesmus Manoti Makworo alias Nyamweya will remain in custody until there is a change in circumstances established by this court. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 9TH DAY OF APRIL, 2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Ndeda counsel for the State M/S Githinji counsel for accused Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13970/eng@2025-04-09 4

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