David Kagwatha Munai v Republic

3. The court also called for a Pre Bail report which was filed on 10th September, 2024 and in this report, the Probation Officer has considered in detail the accused persons’ family circumstances, his personal history, means, among other factors relevant to guide the court in arriving at a fair conclusion on the favourable bail and bond terms to be granted in the circumstances of this case. 4. In that report, it is stated that the accused person is aged 32 years old with no parental responsibilities , has a fixed abode and is not a flight risk in the event he is released on bond. Further, it is reported that all his family members are aware of the gravity of the ofience facing the accused given that the bond terms earlier issued are beyond their reach, and thus prays for review of the same. It is also averred that his father has ofiered to act as the contact person during the trial. The Probation Officer further points out that there is no opposition from the local administration and community for the bond terms to be reviewed. And as regards the victim’s concerns, it is averred that the accused and the deceased were cousins and the deceased’s family has come to terms with the demise of their kin and are not opposed to the review of the bond terms. Determination 5. Having considered the submissions made by the Applicant in support of the application and the prosecution’s submissions in opposition thereof, as well as the Affidavit of Means filed herein and the findings and recommendations in the Pre Bail report, the only underlying issue for determination is whether the court can exercise its discretion and review the bond terms earlier set by the Hon. Kasango J. downwards in a ruling delivered on 10th June, 2021. 6. In that regard, this Court is alive to the fact that the purpose of bail and bond terms is to ensure the attendance of an accused person in court but are not meant to punish an accused person, unless compelling reasons to warrant the denial of the bond are demonstrated as existing. This court is guided by the decision in the case of Cyril Kipruto Serem –vs- Republic [2020] eKLR, which rendered thus:“ The amount of bail or bond is not supposed to be an approximation of the value of the subject matter of the criminal charge. It does not follow that the higher the value of the property subject of the trial the higher the bail bond terms. It is with respect faulty reasoning because, were it so, those poor ofienders on charges, for example, of destruction or attempted fraudulent obtaining, of property of high value would never secure hefty bail and bond terms imposed. Terms of bond are not meant to punish the accused for any perceived guilt for the charges leveled against him. Nor are the terms meant to ensure he is detained awaiting trial to avoid his escape or to ensure punishment. Terms of bail or bond should be tailored to secure and ensure the attendance in court of the accused for purpose of his trial. If the case meets the criteria for grant of bail in that there are no compelling reasons to deny bail, then the conditions for bail must be such as the accused in the particular case is able to meet. So that grant of bail is not a backdoor denial of liberty contrary to, and in mockery of, Article 49 (1) (h) of the Constitution. The accused is innocent until proved guilty and he is entitled to the Article 25 fair trial protections afiorded an accused under the Constitution.” 7. Furthermore, Article 49(1)(h) of the Constitution provides that an arrested person has the right to be released on bail and bond terms on reasonable condition unless there are compelling reasons not to be released. The Judiciary Bail and Bond Policy Guidelines (2015) underscores this constitutional guarantee and provides that the courts must ensure that the bail terms are reasonable, not excessive, and tailored to unique circumstances of an accused person and or a case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19423/eng@2025-06-17 2

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8. In the present case, the accused person has filed an Affidavit of Means sworn by his father, wherein he has deponded the financial hardship faced by their family and their inability to raise the bond amount as originally fixed by this Court. The affidavit is uncontroverted and provides sufficient prove that the accused person’s detention is not as a result of unwillingness to comply with court orders or the bond terms but is out of economic incapacity. 9. This Court has also considered the pre-bail report filed by the Probation and After Care Services Department. The findings and recommendations in the report support the application for review and recommends more lenient bond terms. Notably, it confirms that the accused person has a fixed place of abode, that he is not a flight risk, and that he has co-operated with the authorities during the pendency of the proceedings. The report has also disclosed that that the complainants family who are relatives of the accused person, have come to terms with the demise of their kin and do not oppose the application for review of the bond terms. 10. Further, there is no demonstration from the prosecution that there are compelling reasons to deny the application at hand. Indeed, there is nothing on record to show that the accused person is likely to abscond, interfere with witnesses or otherwise compromise the integrity and fairness if the proceedings herein of released on more lenient bond terms. 11. In the present matter, the court is therefore persuaded that the accused has demonstrated sufficient cause to warrant the review of the bond terms since the conditions initially set by this court have proven beyond his means and there is credible evidence to show that less onerous terms can still achieve the constitutional objective of securing his liberty and attendance in court. 12. Accordingly, to the Application for review and bond terms is hereby allowed. The bond terms issued on 10th June, 2021 are hereby varied and substituted as follows:a. The accused person shall be released on a bond of Kshs.500,000.= with one surety of a similar amount or in the alternative, a cash bail of Kshs.200,000/-. b. All other conditions previously imposed including restriction from interfering with prosecution’s witnesses shall remain in force. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 17TH DAY OF JUNE , 2025. D. O. CHEPKWONY JUDGE In the presence of: Accused person – present No appearance for and by counsel for both parties https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19423/eng@2025-06-17 3

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