Republic v Mike Toroitich & 2 others

6. For Fredrick Komen a report was filed on 5/5/2026.The PACs Officer. reported that all the secondary victims opposed the 3rd accused’s person being admitted into bond terms; that they are ‘still in fear and bitter over what the accused person did and more so how the crime was performed’; that the accused person has been threatening them and they had a feeling if released now he might come and harm them; that his safety back to the community was not guaranteed as the community members might harm him. On Community ties it was alleged that the accused was threatening some of the witnesses 7. The PACs report concluded that the accused was 46 years old, ready to abide by all conditions of bond should the court grant him bond. 8. In Fredrick’s case the objection to bond is because of the possibility of revenge. It is important that PACs Officers while conducting these interviews also create awareness on the importance of due process – of the right of the victims and the accused persons to a fair hearing; of the prescription of innocence; the requirements that we must all allow the law to take its cause – and the fact that bond is a Constitutional right. That any alleged violations of bond/threats by the accused to witnesses/other person related to the matter must be reported to the requisite authorities for appropriate action – and should not be kept as complaints without action. 9. I have carefully considered the sentiments of the victims. I also considered that there was no objection to bond by the prosecution. They must have weighed the fears expressed by the victims and the local administrators and found them to fall short of the Constitutional threshold of compelling reasons. 10. It is noteworthy that the ofience is said to have been committed on 16/11/2020. Fredrick 1st appeared in court on 13/4/2026. Mike and Andrew appeared on 19/2/2026. Before that they were in the community. There is no evidence before me that they had threatened the witnesses/threatened to harm any of the person alleged to have expressed fear of harm. 11. These persons did not tell the PACs Officer that they had reported the alleged threats to the local administrators – neither did the local Administrators indicate they had received any of these reports. 12. The PACs Officer has an obligation to interrogate statements made by the persons they interview for veracity, and where necessary to make the appropriate referrals. 13. In this case – that was not done – and the fears, remain fears . Both the accused persons and the members of the community have the obligation to abide by the law – No one is allowed to take the law into their own hands – the accused persons are presumed innocent. That is their Constitutional Right – and bond is based on that right. The victims cannot be the ones to determine the guilt of the accused person. 14. The local Administration should be reminded of her role to maintain law and order by reminding the citizens of their duty to obey the law and respect the rights of one another. An accused person can be released on bond on condition that they do not visit the area where the ofience occurred if that is what is needed to keep them secure. In this case – there is an alternative place for this accused person. 15. Section 123 of the Criminal Procedure Code provides for Bail – and at 123(2) states that “the amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.” 16. Section 123 A provides for the exceptions to bond. (1) 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— https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8277/eng@2026-05-29 2

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(2) (a) the nature or seriousness of the ofience; (b) the character, antecedents, associations and community ties of the accused person; (c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and; (d) the strength of the evidence of his having committed the ofience; A person who is arrested or charged with any ofience 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. 17. Having considered the Pre-bail reports which provide to some extent information on section 123A (b), and 2 (b) and Article 49(1)(h) of the Constitution which provides the right to bond and that bond will only be denied if there are compelling reasons .I have found none. 18. In the circumstances Bond is granted at Ksh. 300,000/= each with a surety of the same amount, on condition that the accused persons do not visit the area where the ofience was committed. RULING DATED SIGNED AND DELIVERED VIRTUALLY THIS 29TH MAY 2026 MUMBUA T MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8277/eng@2026-05-29 3

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