Republic v Otwori & another (Criminal Case E014 of 2026) [2026] KEHC 8951 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8951 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISII CRIMINAL CASE E014 OF 2026 SIFUNA NIXON, J JUNE 11, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND HESBON OKELLO OTWORI ............................................................... 1ST ACCUSED DAVID OTWORI NYANGWESO ........................................................ 2ND ACCUSED RULING 1. The Accused have been charged with the ofience of murder. At the plea. Both denied the charges, and a plea of “Not Guilty”, was entered. They subsequently applied to be released on bail/bond. Although the prosecution did not oppose the Application, this Court directed the Kisii County Probation Office, to file Pre-bail Reports; on the Accused’s suitability for admission to bail/bond. 2. The two Reports were subsequently filed in this Court on 11th May 2026. They were favourable to both Accused persons. The Reports state that both Accused are persons with known homes and family. That they are not a flight risk. That they do not pose a threat to the community. Hence that they are suitable for release on bail/bond terms. Determination 3. Bail is a constitutional right under Article 49 (1) (h) of the Kenya Constitution; and this ofience, despite being a serious one, is bailable. On a bail Application, a court shall consider several factors. The prime consideration being whether the Accused will attend court, or whether there is a likelihood of flight, or abscondment. 4. Notably, although the ofience of murder is bailable and bail is a constitutional right, given the seriousness of the ofience and the penalty if convicted, it is generally believed the likelihood of flight is high. This is however, a generalised belief, and each case has to be considered on its own circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8951/eng@2026-06-11 1
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5. I have perused the facts contained in the Report, as well as its conclusion and recommendations. A Prebail Report, like any other Report to court, is not determinative but only recommendational; hence not binding on the court. 6. Even after receiving it, a court has to prudently consider all the prevailing circumstances and relevant factors such as whether the Accused is a flight risk; whether there is a likelihood of the Accused interfering with the witnesses; the safety of the Accused upon release on bail/bond; whether the Accused has a fixed and known place of abode; the history of the Accused while on bail previously; and any other relevant factors. 7. Where the court finds an Accused suitable for release on bail/bond, it will impose on that bail/bond, such terms as are commensurate with the seriousness of the ofience. With serious ofiences attracting high and stringent terms. 8. Although, this Court is not bound by the Report, I am persuaded that there is on record no facts that militate against granting the Accused, bail/bond on such terms are reasonable and commensurate with the gravity of the ofience of murder. 9. Upon considering the Bail & Bond Guidelines, the facts and findings in the Pre-bail Report, as well as all the prevailing circumstances, the Application is hereby allowed, and each Accused person is hereby granted bail/bond, on the following terms: a. A cash bail of Ksh 600,000= (Kenya Shillings Six Hundred Thousand), or bond of Ksh 600,000= (Kenya Shillings Six Hundred Thousand) with a surety of similar amount. b. While on bond, the Accused shall not contact any prosecution witness. c. Each shall also remain in one place of abode throughout the period of trial; and which should be known to the Investigating Officer. d. Given the rampant nature of abscondment in this Court in similar cases, the surety should be made aware of his/her responsibility as surety, and of the consequences should the Accused abscond. DATED AND DELIVERED AT KISII ON THIS 11TH DAY OF JUNE 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8951/eng@2026-06-11 2
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