Republic v Samwel Otieno Olwero & 2 others

attending court until 21st January, 2025, whereafter he absconded and has not attended the subsequent court sessions numbering about 13, a period of over 1 year. 3. The further ground presented by the State is that it has since come to light that the bond security documents that were presented by one Stephen Onyango Awinda – the 1st accused’s surety – to secure the release of the 1st accused were forged and that the said surety is currently facing criminal prosecution in respect thereof in Kisumu Chief Magistrate’s Court Criminal Case No. E038 of 2025. 4. The application is supported by the affidavit of the investigating officer, Police Corporal Zablon Atubwa. 5. In his affidavit, Police Corporal Zablon Atubwa deposes that in the instant matter which is a murder trial, three accused persons were all initially charged before this Court and were granted bond pending trial. He states that the 1st accused, Samwel Otieno Olwero, complied with bail conditions initially but began absconding from court proceedings in January, 2025 without explanation, resulting in multiple missed court appearances and delays. 6. Corporal Atubwa notes that this Court has issued multiple warrants for the 1st accused’s arrest, but he remains at large despite diligent efforts by law enforcement. He adds that investigations have revealed that the surety documents used to secure his release on bond were fraudulent and the surety responsible has since been arrested and charged with forgery and aiding a prisoner to escape, with proceedings pending before the Magistrate’s Court. 7. The investigating officer emphasizes in his affidavit that the 2nd and 3rd accused have remained in custody and have always been ready to proceed with trial, while the continued absence of the 1st accused has delayed the case. This delay, he states, violates the constitutional rights of the 2nd and 3rd accused to have criminal proceedings concluded without unreasonable delay and also undermines the rights of witnesses and the victim’s family. 8. Corporal Atubwa contends in his affidavit that the conduct of the 1st accused demonstrates a deliberate attempt to evade justice, effectively waiving his right to be present during trial. He therefore submits that it is in the interests of justice for the trial to proceed in the absence of the 1st accused. 9. The officer concludes that allowing the trial to continue in the absence of the 1st accused is necessary to uphold the rule of law, protect the rights of all parties involved and serve the interests of justice. 10. The 2nd and 3rd accused persons, through their Counsel, Ms. Omollo, support the State’s application. 11. Having considered the Notice of Motion dated 10th January, 2026, the grounds advanced, the supporting affidavit and the authorities placed before the Court, the issues for determination in this application are: 12. a. Whether the 1st accused’s persistent absence from trial, when considered together with the allegations of fraud surrounding the bond documents and his surety’s misconduct, constitutes conduct that makes it impossible for the trial to proceed in his presence, such that the trial may lawfully proceed in his absence under Article 50(2)(f) of the Constitution. b. Whether, in all the circumstances, it is in the interests of justice to allow the trial against the three accused to proceed in the absence of the 1st accused. These issues require the Court not only to consider the constitutional scope of the right to be present at trial and its waiver by conduct, but also to assess whether the circumstances surrounding the 1st accused’s release on bond, including the alleged forgery of bond security documents presented by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1984/eng@2026-02-17 2

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surety, undermine any basis for expecting the 1st accused’s attendance and fortify the inference that his absence is deliberate. 13. With regard to the first issue for determination, Article 50(2)(f) of the Constitution provides: “ Every accused person has the right to a fair trial, which includes the right—to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed.” 14. In the case of Benard Omondi Mumbo v Republic [2022] KEHC 2816 (KLR), Criminal Appeal E022 of 2020,the High Court explained this provision, stating that: “ A plain reading of Article 50(2)(f) shows that every accused person has a right to a fair trial which includes the right to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed… an accused’s conduct that may deny him the enjoyment of the right to be present in court during his trial include … where he deliberately absents himself or absconds.” 15. With respect to the second issue for determination, which is whether, in all the circumstances, it is in the interests of justice to allow the trial against the 3 accused persons to proceed in the absence of the 1st accused, jurisprudence that emerges from our courts is that where an accused voluntarily and persistently absents himself from trial proceedings of which he has notice, his conduct may amount to a waiver of the constitutional right to be present at trial. 16. In the case of Republic v Galma Abagaro Shano [2017] eKLR, the High Court ruled on a murder trial where the accused had absconded after release on bond. The Court observed as follows: “ This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court… where an accused person… absconds, then he has waived his right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his absence.” 17. In Republic v Teteror [2023] eKLR, the High Court found that an accused who escaped from lawful custody after being in court had waived his right to be present. The Court observed as follows: “ The Accused person was present throughout the prosecution case. He however escaped from lawful custody when he was placed on his defence. The Accused is not in court due to his own fault… and has thus waived his constitutional right to be present in court.” 18. In Republic v Rotich [2025] eKLR, the Court emphasized that where an accused has absconded and not returned, the right to be present may be relinquished. The Court stated as follows: “ …by absconding himself, the accused abrogated his constitutional right to be present during his trial… I therefore allow this application and direct parties to… pave the way for judgment on the evidence on record.” 19. Lastly, in the case of Sora v Republic [2024] eKLR, the Court stated: “ It is clear… that where an accused person absconds from the jurisdiction of the court, the trial court can proceed with the case in the absence of the accused. The appellant deliberately https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1984/eng@2026-02-17 3

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failed to turn up in court. He cannot turn around and complain of infringement of his constitutional rights… His conduct made it impossible for the trial to proceed. By absenting himself… the appellant waived his right.” 20. These authorities confirm that persistent and deliberate absence, where the trial court has taken reasonable steps to secure attendance, may constitute a waiver of the right to be present and allow the trial to proceed in absentia. 21. The affidavit of Corporal Atubwa deposes that the bond security documents presented to this Court on behalf of the 1st accused’s purported surety, Stephen Onyango Awinda, have since been revealed through investigation to be forged. The surety is currently facing prosecution in Kisumu Chief Magistrate’s Court for, inter alia, forgery and aiding a prisoner to escape. 22. This evidence raises a live and credible inference that the 1st accused and his surety may have colluded in the preparation or presentation of forged bond documents to secure his release and/or escape from lawful custody. If so, that conduct strikes at the very foundation of the bail regime, one of trust and accountability and suggests that the 1st accused was never genuinely intending to attend trial in accordance with the bond conditions. 23. The possibility of such collusion is supported by the fact that the 1st accused complied with the terms of bond only briefly before abruptly absconding and his abscondment followed almost immediately after a period during which the surety’s bond documents were material to his release – when the trial was about to commence. The same surety is now facing criminal prosecution for offences intimately connected to those bond documents and the 1st accused’s abscondment. 24. In such circumstances, it cannot be said that the accused’s absence is accidental, inadvertent or due to circumstances beyond his control. Instead, the accused’s absence, reinforced by the alleged fraud involving his surety, strongly points to a deliberate design to evade the judicial process. This is conceptually analogous to the reasoning in the cases of Sora and Galma that where absence is not merely random or inadvertent but is a product of deliberate behaviour, the accused may not later rely on his absence to interrupt proceedings. 25. In Sora, the High Court held that: “ …the Appellant deliberately failed to turn up in court… His conduct made it impossible for the trial to proceed. By absenting himself… the appellant waived his right to be present.” 26. Here too, the cumulative effect of the 1st accused’s absence and the circumstances surrounding his release and flight makes it impossible for trial to proceed in his presence. 27. The continued absence of the 1st accused has impeded the progress of this murder trial, causing repeated deferrals of hearings and undermining the rights of the 2nd and 3rd accused to have their case concluded without unreasonable delay, as guaranteed under Article 50(2)(e) of the Constitution. Moreover, the victim’s family and witnesses have also been denied closure, compounding the prejudice arising from the 1st accused’s conduct. 28. Prolonged absence is inconsistent with the efficient administration of justice. The delay here is of constitutional import, not only delaying justice for the two co‑accused and the State, but also eroding public confidence in the administration of criminal justice where the 1st accused’s misconduct enables the repeated postponement of a serious trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1984/eng@2026-02-17 4

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29. For the reasons set out above, this Court finds that the conduct of the 1st accused in absconding from the instant court proceedings, remaining at large despite knowledge of the subsistence of this matter and in circumstances where the bond documents upon which his release was secured are alleged to be forged, has made it impossible for this trial to proceed in his presence and amounts to a waiver of his right to be present at trial under Article 50(2)(f) of the Constitution. 30. It is in the interests of justice, balancing the rights of the co‑accused, the need for expeditious determination of this matter and the rights of the victim’s family and the witnesses, that the trial continues in the absence of the 1st accused. 31. Accordingly, the State’s application dated 10th January, 2026 is allowed. The proceedings shall continue in the absence of the 1st accused, who is deemed to have waived his right to be present. 32. The trial will proceed on 20th and 21st of July, 2026. 33. The warrant of arrest issued against the 1st accused will remain in force. 34. It is so ordered. DELIVERED, DATED AND SIGNED THIS 17TH DAY OF FEBRUARY, 2026. JOE M. OMIDO JUDGE 1St Accused: No appearance. 2Nd & 3Rd Accused: Both present. Prosecution Counsel: Ms. Muema. Defence Counsel: Ms. Omollo. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1984/eng@2026-02-17 5

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