Republic v Emmanuel Wanyonyi Wanjala

5. The accused person was assigned new counsel to represent him and by 27th February, 2023 both attended court but again failed to do on a number of occasions until 30th May, 2023 when in his presence and that of his counsel was confirmed. However, although the matter was set down for hearing, the same was adjourned on account of there being n witness in attendance. The Investigating Officer was then summoned to show cause why witnesses are never availed before court so they can testify. He promised to avail the witnesses. 6. This them prompted the accused person, through his advocate, M/S Ngone to apply for his release on free bond terms. The court then called for a Social Inquiry to be conducted on the accused and a Pre-bail Report be filed in court to assist in its determination of the accused person’s application. The Prebail information report was filed on 6th February, 2025. 7. The Probation Officer considered the accused persons’ family circumstances, his personal history and means, drugs and substances, previous adherence to bond/license terms, seriousness of the ofience, victim’s concerns, community ties and bail and securities in coming up with its conclusion and recommendations on the suitability of the accused person to be released on free bond. 8. The Probation officer reported and recommended that the accused person has demonstrated strong family support of persons who are willing to bail him out. The local administration affirmed the accused person has a permanent residence within the area. The accused was also reported not to have criminal history and confirmed that he understands the seriousness and gravity of the ofience. However, the victim’s family raised concerns due to the distance between Bungoma and Kakamega, a fact that is likely to be a challenge to compliance with the court orders on bail terms given the gravity of the family’s financial status, accused’s personal and mental challenges which his own father has expressly confirmed will make him not guarantee the accused person attendance in court. The Probation Officer has then urged that the court imposes strict conditions if it is to order for the accused to be released on bond. Determination 9. In consideration of the accused person’s application, I have read through the Pre-bail information report preferred and filed by the Probation Officer and After-care Services on 5th February, 2025 and find the main issue for determination in this case is whether or not to release the accused person on bond, ‘free or secured’. 10. The law on bond/bail is a constitutional guarantee and is provided for under Article 49(1)(h) of the Constitution of Kenya, 2010 which states:Rights of arrested persons. 11. (1) An arrested person has the right— h. to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. However, for this provision, the right is not absolute in that it limits those rights where compelling reasons sufficient to warrant an accused release on bond. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13999/eng@2025-03-27 2

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12. Further, under Section 123A of the Criminal Procedure Code, the law has provided for other conditions that a court should also taken into consideration in determining such application. These have been restated in Paragraph 4.9 of the Judiciary’s Bail and Bond Guidelines as follows:“ In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious ofiences.” 13. Therefore, it is trite that the purpose of bond and bail is to secure and ensure attendance of an accused person in court as and whenever he/she is required until the full determination of his/her trial. 14. Having considered the circumstances of the case, the findings and recommendations, the Bail Information Report together with the constitutional and statutory provisions on bond and bail, the court notes the accused has been in custody since 9th July,2019 when he was arraigned before court and having been told that the family is unable to raise the bond terms set out herein, this Court find that the application by the accused is meritable but only to the extent that given the seriousness of the ofience, the court cannot grant a free bond. 15. In the upshot, the accused may be released on bond/bail in the following terms:a. The accused may be released on a bond of Kshs.300,000.= with one surety of a similar amount; and or, b. In the alternative, the accused may be released on cash bail of Kshs.100,000/=. c. The accused to provide particulars of his place of abode and contact person. d. The accused to attend court as and whenever he is required until the final determination of this trial. e. Failure to abode by Order No.(d) above, with no good or justifiable reason, the bond/bail terms shall be rendered cancelled and accused remanded in custody till the determination of the trial. f. Hearing on 13th May, 2025 as previously scheduled. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 27TH DAY OF MARCH , 2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Ndeda for the State M/S Ngone for the accused Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13999/eng@2025-03-27 3

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