Republic v Hillary Kipkoech

5. In opposition to the Affidavit in opposition of Bond, the accused person filed a Replying Affidavit dated 16th December 2024 and states that he was in his rural home in Kericho and not hiding as alleged by the prosecution. He further deposes that he has never been summoned by the police to record a statement concerning the occurrences that led to the instant case and failed to appear. The accused person avers that he is not a flight risk as his rural home is known and in the event he is required to reside within the court’s jurisdiction, his sister, Mercy Chemutai who resides in Kihunguro in Ruiru is willing to accommodate him. 6. The accused person avers that the situation on the ground is not volatile as alleged by the respondent. According to him, there is no risk of angry members of the community attacking him in case he is released on bond. After the incident there was no such occurrence of hostility towards him. 7. The accused person argues that it is his constitutional right to be released on bond and all ofiences are bailable as envisaged in the Constitution of Kenya unless there are compelling reasons for the denial of the same. The accused person further states that the prosecution have not demonstrated any compelling reasons for not releasing him on bond. 8. The accused person further states that he is ready and willing to abide by the terms set by the court, to attend court as when required. He undertakes to conduct himself in such a manner that will not be in breach of the conditions this court will set for bond terms. He further states that he will not interfere with the witnesses or make it difficult for the court while dealing with the matter. Furthermore, he avers that he is presumed innocent until proven guilty and that is his first arrest having never been convicted of any other ofience. Thus it would be in the interest of justice that he be admitted to favourable bond terms. 9. Parties put in written submissions. The Prosecution’s Submissions 10. The prosecution relies on Article 49(1)(h) of the Constitution, Section 123A of the Criminal Procedure Code, the Bail and Bond Policy Guidelines and the case of Michael Juma Oyamo & Another v Republic [2019] eKLR and submits that the prosecution has presented compelling reasons to warrant the denial of bail or bond to the accused. The prosecution submits that the accused person is a flight risk as it has already been said by the investigating officer. He The accused person used to be an employee of Searite Security Holdings, a security company where he worked as a watchman and was assigned to guard Loc 20 Apartments where the incident happened. After the incident, the accused person fled away and was later arrested in Kericho County and therefore if he is released on bail/bond, he is likely to abscond. 11. The prosecution submits that the accused person’s life is in danger as tension and hostility is still high where the incident occurred. The community may retaliate if the accused person is released on bail/ bond. Pursuant to Section 123(2)(b) of the Criminal Procedure Code and paragraph 4.9 of the Bail and Bond Policy Guidelines, a court can deny bail/bond, if the accused person’s security is at stake. In the instant case, the prosecution’s averments have not been controverted by the accused person. The Accused Person’s Submissions 12. The accused person relies on Section 123A of the Criminal Procedure Code, Article 49(1)(h) of the Constitution and the case of Ng’ang’a v Republic [1985] KLR 451 and submits that the prosecution bears the burden of proving existence of compelling reasons to deny bail. The accused person submits that the prosecution wishes to deny him bail on grounds that he is a flight risk. The prosecution further purports to care for his own protection and safety. He argues that the said reasons do not meet the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19798/eng@2025-02-20 2

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required threshold to be regarded as compelling reasons as he has undertaken to abide by the court orders and promised to attend court when required to do so. The accused states that as per the prebail report filed in court, it is clear where he hails from and his ties to the community are solid. The accused person submits that he has adduced credible evidence that he has a rural home in Chebigen village, Kapsaus location in Kericho County where he can be found in the event he absconds which he does not intend to do. 13. The accused person relies on the case of R v Joktan Mayende & 4 Others [2013] eKLR and submits that the prosecution has not adduced any evidence to show that he would face any harm from the public if released. The Law Whether the reasons for opposing bail are merited in terms of Article 49(1)(h) of the Constitution. 14. Article 49(1)(h) of the Constitution provides that:An accused 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. 15. It follows that the right to bail is not absolute and where there are compelling reasons, that right may be restricted. Nevertheless, since the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. 16. The considerations in determining whether or not to grant bail are set out in Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 which sets out judicial policy on bail thus:“ the following procedures should apply to the bail hearing: a. The prosecution shall satisfy the court, on a balance of probabilities, 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:- b. That the accused person is likely to fail to attend court proceedings; or c. That the accused person is likely to commit, or abet the commission of, serious ofience; or d. That the exception to the right to bail stipulated under Section 123A of the criminal Procedure Code is applicable in the circumstances; or e. That the accused person is likely to endanger the safety of victims, individuals or the public; or f. That the accused person is likely to interfere with witnesses or evidence; or g. That the accused person is likely to endanger national security; or h. That it is in the public interest to detain the accused person in custody.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19798/eng@2025-02-20 3

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17. In Republic v Fredrick Ole Leliman & 4 Others [2016]eKLR the court held that:“ The principles set out under the Bail and Bond Policy Guidelines I have been referred to are the same ones that were set out in the celebrated case of Ng’ang’a v Republic 1985 KLR 451 where Chesoni J, as he then was thus:“ The court in exercising its discretion to grant bail to an accused person under section 123(1) or (3) of the Criminal Procedure Code (Cap 75), should grant bail to an accused person unless it is shown by the prosecution that there are substantial grounds for believing that:a. The accused will fail to turn up at his trial or to surrender to custody; b. The accused may commit further ofiences; or c. He or she will obstruct the course of justice The primary consideration in deciding whether or not to grant bail to an accused person is whether the accused is likely to attend trial. In making this consideration, the court must consider; a. The nature of the charge or ofience and the seriousness of the punishment to be awarded if the applicant is found guilty; b. The strength of the prosecution case; c. The character and antecedents of the accused; d. The likelihood of the accused interfering with prosecution witnesses.” 18. The issue that arises is whether the reasons adduced by the prosecution are compelling enough for the court to deny the accused bail pending trial. 19. The prosecution has argued that the accused person is a flight risk as he does not have a fixed place of abode and further that his safety is at stake as the situation on the ground is volatile. 20. In regard to the accused person is a flight risk, the prosecution did not demonstrate by way of filing affidavit or other evidence that the accused is likely to take flight upon release. The affidavit of the investigating officer does not explain when the accused left Ruiru to go and hide in Kericho. The date of arrest and how he was arrested in Kericho has not been given. Allegations that person’s life is in danger, is not supported by any evidence, which amounts to speculation. The accused person has sworn an affidavit stating that his rural home is in Kericho. Further, the pre bail report filed on 9th January 2025 provides that the accused person hails from Chebigen village, Kapsaus location in Kericho county. The report states that the accused person has good ties with both his family and community members and he admitted that he ran away from his work place to save his life from mob justice. 21. In the case of R v Joktan Mayende & 3 Others (2012) eKLR, the court in considering the scope of Article 49(1)(h) stated as follows:The phrase “compelling reasons” denote that the reasons are forceful and convincing as to make the court feel strongly that the accused should not be released on bond. Bail should https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19798/eng@2025-02-20 4

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therefore not be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution. 22. The prosecution in my view, has failed to present any cogent evidence to support the allegations in the affidavit of compelling reasons. Having carefully considered the grounds relied on, it is my view that the reasons given do not pass the test set out under Article 49(1)(h) of the Constitution. 23. Accordingly, I am of the opinion that the prosecution has not proved on a balance of probabilities that there are compelling reasons to warrant the denial of bail. 24. Consequently, I hereby grant bail pending trial in the following terms:- 25. a. That the accused shall be released on bond of KSh.1,000,000/= with two sureties of a like amount. b. That he shall not leave the jurisdiction of this court without its permission. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 20TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19798/eng@2025-02-20 5

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