Republic & 1 other v Dennis Kinyua Abdallah

3. The application hereof concerns the accused right to be released on reasonable bond terms pending trial unless there are compelling reasons not to be released, as provided for under Article 49(1)(h) of the Constitution of Kenya 2010. 4. The prosecution opposed his release on bond relying entirely on the Affidavit in opposition of bond sworn by PC/W Susan Makandi on 17th day of June 2026. Ms. Adhi, the Prosecutor averred that bond is not an absolute right to the accused. She submitted that the Court in exercise of it’s discretion on whether or not to release an accused person on bond or bail pending trial, should be guided by the provisions of Section 123A of the Criminal Procedure Code. It reveals that the Court should have regard to:1) The nature and seriousness of the offence. 2) The character, antecedent, community ties of the suspect. CR. CASE NO. E031 OF 2026 association and 2

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3) Accused’s record in respect of compliance with previous bond or bail terms. 5. She further submitted that paragraph 4.9. of the Kenya Bail and Bond Policy guides as to what constitutes compelling reasons as:1) Failure of the accused to observe bail/bond in previous cases. 2) Character and antecedents of the accused person. 3) Nature and seriousness of the offence. 6. In this case she revealed the compelling reasons as follow:1) She alleged that the accused is a flight risk as following the commission of the offence on 5/3/2026 at Kianjai, the accused fled to Tharaka Nithi several kilometres from the scene and was arrested later on 15/5/2026. 2) The accused does not posses an Identification Card and a mobile phone number which is registered under his name. CR. CASE NO. E031 OF 2026 3

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3) The Accused antecedents militates against his release as he had previously been charged at Nkubu Law Courts with the offence of stealing and assault in case No. E259 of 2022 where upon conviction and sentence he sought revision in the High Court, in case No. E029/2024. He was placed on probation and absconded the probation schedules. 7. The Prosecution relied on case of Republic –vs- Kelvin Otieno Oduor alias Wycliffe Otieno Oduor, Criminal Case No. 37 of 2020, and Republic –vs- Bernard Mutuku Mutiso alias Richard Kariuki Wanjiru, Criminal Case No. 7 of 2020. 8. They urged the Court to decline release of the accused on bond or bail. 9. Mr. Kaba for the accused was however of a different position. He averred in his submissions that the application by the Prosecution is full of malice. He referred to paragraph 4 of the Affidavit in opposition of bond which states that one of CR. CASE NO. E031 OF 2026 4

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his name is of Somali origin, which depicts malice. The Court was urged to consider the accused a suspect and not a convict, and that he need enjoy the right to bail/bond under Article 49(1) (h)(h) of the Constitution of Kenya 2010. 10. It was further submitted that paragraph 3 of the Affidavit in opposition of bond reveals that the police knows the accused place of abode. It states he come from Kaurone within Mitunguu. Mitunguu is close to Tharaka Nithi County and the accused having been arrested at Tharaka Nithi had not fled. He’s not a flight risk. 11. The Respondent avers that the evidence of accused antecedent is inadmissible under Section 57 of the Evidence Act, and there’s no evidence adduced to the effect that he had absconded while serving on probation. Disclosing a case number, is not evidence to the said effect. 12. Paragraph 11 of the Affidavit in opposition of the bond alleges after the arrest of the accused, a wife of a key CR. CASE NO. E031 OF 2026 5

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witness was assaulted. Since the accused had already been arrested and could not have carried out the assault, such disclosure is malicious. 13. He, the accused is also alleged not to have a phone, while the Affidavit claim he was heard through a phone threatening witness. Even if he has no phone, such is not a compelling reason on which he can be denied bond. 14. It’s also alleged if the accused is released, his life will be in danger. The Respondent claims there’s no evidence to that effect. 15. They relied on the case of John Ouma and Another – vs- Republic, (2014) eKLR, to the effect that evidence of character should not be relied upon. 16. The accused prayed for his release on bond, stating he’s willing to abide by any conditions the Court will impose. CR. CASE NO. E031 OF 2026 6

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17. This Court observes that the right to bail or bond pending trial is a constitutional right guaranteed under Article 49(1)(h) of the Constitution of Kenya, 2010, which provides that an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there exist compelling reasons to warrant the denial of that right. 18. The effect of this provision is that every accused person, including one charged with the offence of murder, is entitled to be considered for release on bond. 19. The statutory framework is found in Section 123A of the Criminal Procedure Code, Cap. 75, which requires the Court, in determining whether to admit an accused person to bail, to consider all the relevant circumstances of the case. These include the nature and seriousness of the offence, the strength of the Prosecution case, the character and antecedents of the accused, the accused’s Community CR. CASE NO. E031 OF 2026 7

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ties, previous compliance with bail terms where applicable, and the likelihood that accused will attend Court whenever required, of which to me is of paramount consideration. 20.The Judiciary Bail and Bond Policy Guidelines of March 2015, further elaborates the factors that may constitute compelling reasons. They include the likelihood that the accused will abscond, interferance with witnesses or evidence, commit further offences if released, endanger public order or security, or where the jeopardized by release. accused’s own safety maybe These considerations are neither exhaustive nor automatically applicable; as each case must be determined on it’s own facts. 21. The burden of establishing compelling reasons rests upon the Prosecution. Mere allegations or apprehensive are insufficient. The Court need be satisfied, on the basis of credible material placed before it, that the reasons advanced CR. CASE NO. E031 OF 2026 8

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are real, substantial and capable of justifying the Limitation of the Constitutional right to liberty. 22.In Republic –vs- Ahmed Mohammed Omar & 6 Others (2010) eKLR, the High Court observed that the principal consideration in bail applications is whether the accused is likely to attend trial and that denial of bail must be founded upon cogent reasons demonstrating that the administration of justice would be prejudiced by the accused’s release. 23. Accordingly, in determining whether an accused person charged with murder should be admitted to bond, the Court must carefully balance the constitutional presumption of innocence and the right to liberty, against the need to safeguard the proper administration of Justice. 24.The Constitutional Imperative is that the accused be admitted to bond on reasonable conditions designed to CR. CASE NO. E031 OF 2026 9

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secure attendance at trial while preserving the integrity of the criminal Justice process. 25.The question then, is whether the prosecution have established compelling reasons, warranting the accused be denied bail or bond. 26.In relation to the availed antecedents, it was not revealed whether in the case of Nkubu Law Courts the accused was on bond or bail and whether he attended Court as required. We were only informed that the sentence was reviewed by the High Court to one of Probation, and he failed to comply with probation conditions. We Were however not given details of what happened thereafter on the said issue. 27.The Prosecution’s Affidavit in opposition to bond/bail is wanting in specificity and evidential details. The allegations contained therein are expressed in general terms and are unsupported by concrete facts or cogent CR. CASE NO. E031 OF 2026 10

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particulars capable of establishing compelling reasons, as was revealed by the Respondent. Mere assertions, however strongly stated, do not satisfy the Constitutional burden placed upon the Prosecution to justify the denial of bond. 28.Having observed so, the accused herein deserves release on bond/bail. He will be released on bond of Kshs 200,000/- with two sureties in like amount. DATED AND DELIVERED AT MERU THIS 31 ST DAY OF JULY, 2026. S.M. GITHINJI –JUDGE 31/7/2026 Ms. Adhi for the State Mr. Kaba for the Accused person CR. CASE NO. E031 OF 2026 11

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