Republic v Tobias Mulwa Nthale

6. The respondent states that the bond terms set is meant to ensure that the applicant attends court without fail. Further no peculiar circumstances have been advanced by the applicant to warrant upsetting the earlier bond terms. 7. Parties put in written submissions. The Applicant’s Submissions 8. The applicant submits that the seriousness of a charge does not of itself justify oppressive bond terms. The applicant further submits that he need not prove extraordinary or exceptional circumstances and it is enough to show that the terms imposed are unreasonable, excessive or disproportionate in the circumstances and therefore inconsistent with the constitutional standard of reasonableness. Additionally, courts considering revision of bond terms have emphasized that while bond should not be so low as to encourage absconding, it must also not be so high as to effectively keep an accused person in custody merely because of poverty or inability to raise the amount set. 9. The applicant submits that the respondent has not placed before the court any concrete material showing that a reduction or variation of the bond terms would prejudice the administration of justice. The Respondent’s Submissions 10. The respondent relies on Article 49(h) of the Constitution and Section 123A of the Criminal Procedure Code and submits that the bail terms attached to an accused person should be reasonable. The respondent further relies on the Judiciary Bail and Bond Policy Guidelines 2015 and the case of Taiko Kitende Muinya [2010] eKLR and submits that in granting bail. The court must ensure that bail or bond terms must not be excessive or unreasonable and should not be far greater than what is necessary to ensure or guarantee the accused person’s appearance before the court. 11. The respondent relies on the Bail and Bond Policy Guidelines and submits that bail or bond amount should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fieeing. Further, bail or bond conditions should be appropriate to the offence committed and the personal circumstances of the accused person. To support its contentions, the respondent relied on the case of Andrew Young Otieno vs Republic (2017) eKLR. The respondent further submits that the applicant has not demonstrated any peculiar circumstances to warrant upsetting the earlier bond terms. The Law 12. In granting bail/bond, the court must ensure that bail or bond terms must not be excessive or unreasonable and should not be far greater than what is necessary to ensure or guarantee the accused person’s appearance before court. 13. The Bail and Bond Policy Guidelines at paragraph 3.1 (d) underpins the right to reasonable bail and bond terms as follows:Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of on for trial. Accordingly, bail or bond terms should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7796/eng@2026-05-28 2

page 2 of 4

Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fieeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case. 14. In the present case, the accused person faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The accused person entered a plea of not guilty on 13th November 2025 and was granted a bond of Kshs. 1 million with one surety of similar amount. The accused person has proposed cash bail of Kshs 100,000/- and Kshs. 500,000/- bond with a surety. 15. In view of bond/bail terms, the applicant requires to demonstrate either of the following: a. The inability to comply with the terms initially granted by the court in terms of sureties or cash bail. b. Changed circumstances, for example, the likelihood of prolonged pre-trial incarceration or a shift in the accused’s financial status, or deteriorating health. c. That the existing terms are harsh and excessive. 16. The court is also under a duty to consider severity of the offence which may or may not be suitable for review, as well as the “Bail and Policy Guidelines” which promote standard, non- discriminatory, and proportionate terms. 17. The applicant faces a charge of murder which in normal standards is a serious offence which calls for reasonable terms commensurate with the offence. The court requires to consider the seriousness of the offence in granting bail and to grant such terms as will ensure that the accused attends court. 18. The accused was arrested and arraigned in October 2025 before the Thika Magistrate’s court. The plea was taken before this court on 13/11/2025. He has been in custody for about six (6) months. Although the court gave fair and reasonable terms of release being one surety bond of Ksh.1,000,000/ = the accused has shown the inability to raise surety of the amount set by the court which is one of the considerations that this court should take into account. 19. The accused in my view has not shown any changed circumstances or even convinced the court that the terms given are harsh or/and excessive. In regard to the inability to raise the existing bond terms; considering the period spent in custody and the gravity of the offence, I hereby allow this application in the following terms: - 20. a. That the bond terms are hereby reviewed and that the accused shall be released on bond of Ksh.500,000/= with one surety of a like amount. b. Alternatively, the accused shall deposit cash bail of Ksh.300,000/=. c. That the accused shall not in any way interfere with the prosecution witnesses during the pendency of this case. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 28TH DAY OF MAY 2026. F. MUCHEMI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7796/eng@2026-05-28 3

page 3 of 4

JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7796/eng@2026-05-28 4

page 4 of 4