1.Victor Oricho Ochwal, the accused, having denied the allegations against him of having committed murder contrary to Section 204 as read with Section 204 of the Penal Code, sought to be released on bond/bail pending trial. Although the application was vehemently opposed by the State, this court ultimately granted him bond of Kenya Shillings five Hundred thousand (Ksh 500,000/- ) with a surety in a similar sum.
2.Through a Notice of Motion dated 13th day of October, 2022, drawn and filed by Farah Munoko & Company Advocates, the accused seeks review or variation of bond terms issued by this court on May 27, 2021, so that the accused can be admitted to lenient bail terms.
3.The application is premised on grounds inter-alia that the accused has been in remand custody since October 17, 2020; despite all reasonable efforts made by the family, they have failed to secure and/or meet bond terms granted; and that it is only fair that the orders sought be granted.
4.The application is supported by an affidavit, deposed by the accused who reiterates what is averred on the grounds of the application and proposes to be released on either bond of Ksh 300,000/- or a cash bail of Ksh 100,000/-.
5.The application is unopposed. In setting bail terms at the outset, this court took into consideration circumstances of the case. Article 49(1)(h) of the Constitution refers to the right to reasonable bond terms. The provision of the law provides thus:
7.Bond is discretionary, but, it is pegged on various factors, the paramount one being turning up for trial. Terms and conditions that were attached to the bond granted herein have not been complied with because, seemingly they were not practicable.
9.Pretrial detention cannot be justified as it deprives an accused person liberty and undermines presumption of innocence. In the instant case the accused has demonstrated that bail terms set were not reasonable as he has failed to find a suitable surety. Bond review is guided by proof of change of circumstances that would require revision of earlier terms.
10.Notably, bond terms set were not reasonable as the accused failed to raise a surety as afore-stated. He has been in custody for a duration of two (2) years, eight (8) months. No doubt the accused faces a serious charge, the offence of murder though bailable carries a possible death penalty which may be an incentive to abscond if terms set are very lenient. The court must not be seen to provide an inducement to abscond and ultimately frustrating the trial.
11.The upshot of the above is that the application succeeds, in that I do review bond terms set from Ksh 500,000/- to Ksh 300,000/- with a surety in a like sum.
12.It is so ordered.