Republic v Makunda (Criminal Case E028 of 2026) [2026] KEHC 12932 (KLR) (12 August 2026) (Ruling) Neutral citation: [2026] KEHC 12932 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY CRIMINAL CASE E028 OF 2026 SIFUNA NIXON, J AUGUST 12, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND JULIUS SHEUNDE MAKUNDA ................................................................ ACCUSED RULING 1. The accused Julius Sheunde Makunda is in this case charged with the ofience of Murder Contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 Laws of Kenya). When this case came up today for plea-taking, he pleaded not guilty, and applied that he be admitted to bail, and on reasonable bail terms. 2. The prosecution did not oppose the Application; but stated that it requires a pre-bail Report in order to be in a position to know whether it should oppose bail or not. Determination 3. Bail is a constitutional right under Article 49 (1) (h) of the Kenya Constitution. Besides, in Kenya currently, virtually all ofiences are bailable; and bail shall as a norm be granted, except where there are compelling factors or circumstances. 4. For that reason, opposition to a bail application cannot be merely implied, or inferred from default. Opposition to bail ought to be intentional, deliberate, categorical and unequivocable. If not, then the application is unopposed. As is the case with this application. 5. The prosecution cannot by itself defer its response to a bail application to await a Pre-bail Report. Neither can it call for the pre-bail report through the court. Its information and facts as to whether or not the accused is suitable for bail, should be from the Investigating Officer. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12932/eng@2026-08-12 1
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6. That is the one who will have investigated the facts, the incident, as well as scene and locality of the ofience. He is also the one who will have recorded statements, interviewed any person(s) of interest, as well as the witnesses and even the victim or the victim’s family. He will also have interrogated the accused and any other suspect(s); as well as collected exhibits if any. 7. On a bail application, it is the court itself that should decide whether or not it is in a position to decide the application right away, or will require a Pre-bail Report before it can ascertain whether the accused is suitable for bail. In such circumstances, the court will either grant or decline bail at that time, or defer its determination until a Pre-bail Report has been filed. 8. If the latter, the court then directs the Probation office to conduct a diligence and social inquiry and file the Report. Notably, such Report even after it has been filed, is not binding on the court. The Report being informative only and not binding, the court has no obligation to follow the Report’s recommendations. 9. Part of what may cause a court to call for a Pre-bail Report, are the facts, circumstances and factors that the prosecution would have alluded to in its opposition to bail. For instance, where the prosecution has in opposing bail, stated that the accused has no fixed place of abode, or that he is a flight risk, or that there is hostility in the community especially where the incident occurred in a locality where the accused and the victim or victim’s family reside. 10. The calling for a Pre-bail Report is not just a routine or a fixed part of the criminal process. Its necessity will usually depend on the circumstances of each particular case, or on the issues raised on a contested application. 11. In this case, the prosecution has not alluded to any likelihood of interference with witnesses, or a likelihood of flight (or abscondment). There being no contestation in this case between the defence and the prosecution, as to bail, I hereby grant the accused bail/bond on the following terms; a. A cash bail of Ksh 600,000=, or bond with one surety of a similar amount. b. The bond shall be secured by immovable property. DATED AND DELIVERED AT KISII ON THIS 12TH DAY OF AUGUST 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12932/eng@2026-08-12 2
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