Republic v Mercy Wanjiru Njeri

bond terms, seriousness of offence, victim’s concerns, communities ties, bail sureties and securities alongside the perusal of the court and prosecution’s files and interviewing the accused, investigating office’s and local administration in coming up with the conclusion and recommendations. 5. In the conclusion, the probation officer’s report has reported that the accused has had minor challenges characterized with juvenile delinquency and her schooling was interrupted by abseentism and eventually early pregnancy. According to the probation officer, the accused understands the nature of the offence she is facing and prays for lenient and favorable cash bail. It has also been reported that despite being supportive, the accused’s mother has stated that there is no security that can be deposited in court as she is a labourer wile her stepfather is a chef in a school at Ngongo and has distanced himself from this case. She has pleaded for favourable cash bail and vouches to ensure that the accused adheres to the cash bail terms as her contact person. 6. According to the probation officer, the local administration and the community are familiar with the accused and her family and confirm that she has had issues of juvenile delinquency due to involvement with bhang, schooling challenges and early pregnancy but believe that favourable bail terms will help her reintegrate with the family. The investigative agency holds that despite these challenges, the accused does not have previous records as pertains bail/bond terms. 7. Pursuant to the findings in the prebail report, the probation officer has recommended that the accused is suitable to be granted bail/bond terms which balances the family’s plea for cash bail, the nature and magnitude of the offence and the concern from the community that she be granted bail/bond conditions that deter her from running away from home. 8. In reacting to the pre-bail information report and recommendations by the probation officer, the prosecution’s Counsel stated that they were not opposed to the release of the accused person on bail/ bond save that he had noted that no one has volunteered to stand in as her surety and he prayed that the accused be released on bond and not cash bail. 9. On the other hand, the accused’s Counsel prayed that the accused be released on bail in reliance on the information in the prebail report where it is reported that the accused is aged 19 years and is still dealing with the loss of her baby. Counsel submitted that the accused relied on casual jobs which were not stable and even though her mother has no property in her name she is ready to be her surety. As a first offender, the accused/applicant prays that the court releases her on reasonable bond/bail terms. Analysis and Determination. 10. Having listened to the Applicant’s application through her counsel, M/S Wambui to be released on bond/bail and the prosecution’s response, i have also read through the pre-bail information report dated 19th November, 2025. The isuse for determination by this court is whetehr the accused person’s right to bail and bond is guaranteed under Article 49(1)(h) of the Constitution which provides that: An accused person has the right … (h) 11. 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, form this provision, this right is not absolute as it bears a qualification that where there is demonstrated compellable reasons not to be allowed release on bond/bail, then the court should not fall for an invitation to release an accused on bond/bail. This then brings us to the question on what is compelling reasons that would warrant one not to be denied release on bond/bail. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4545/eng@2026-01-07 2

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12. In the case of Republic –vs- Joseph Thiongo Waweru & 17 Others [2017] eKLR, the Court 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.” 13. Further, to what the above cited authority has enunciated on what would amount to compelling grounds that would justify a denial of an accused person being released on bail, there are factors which ought to be considered in a bail and bond application which have been provided for under Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, and they include:(1) (2) 14. 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 offence; (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 offence; A person who is arrested or charged with any offence 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. Having considered the sentiments advanced by both parties, the recommendations by the approbation officer, the court finds that there are no compelling reasons for the accused to be denied release on bail and bond terms. In view of this, the following orders issue:a. The Accused person shall be released on a bond of Kshs. 300,000/= with one surety of a similar amount. b. In the alternative, the accused person shall deposit a cash bail of Kshs. 150,000/=. c. The Accused person shall deposit her passport or any other travel document, is any, in his possession with the court. d. The Accused person shall not leave the jurisdiction of this court without leave or order of the court. e. The Accused person shall furnish the Deputy Registrar with evidence of her place of abode and to inform the court whenever there will be any change of residence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4545/eng@2026-01-07 3

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f. The Accused person to report to the Criminal Investigations Office on the Monday of every week until further orders of the court. g. The Accused person shall attend court for mention once every month for purposes of confirming her compliance of court orders above. h. In the event of disobedience to the orders issued above, the accused person shall be arrested immediately and the bail terms will automatically stand revoked. It is hereby ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 7TH DAY OF JANUARY, 2026. D. O. CHEPKWONY JUDGE In the presence of:Mr. Gacharia counsel for the State M/S Wambui counsel for the Accused Accused - present Court Assistant – Sakina/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4545/eng@2026-01-07 4

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