1.The accused is charged with the offence of murder Contrary to section 203 as read with section 204 of the Penal Code and on 21st September 2021 the same appeared before Kimondo J when it was noted that the same was not in a mental state of mind to take plea and was ordered to attend to psychiatric treatment at a Government Hospital.
2.On 7th March 2022, the same was found fit to plea and he pleaded not guilty to the charges and his Advocate on record applied for the same to be admitted to reasonable bond term in view of his status, to which the Court ordered for a pre-bail report as soon as practical.
3.In mis apprehension of the provisions of article 49 of the Constitution, the accused on 30th November 2022 filed a formal application under certificate of urgency to be granted bail/bond on reasonable terms pending the hearing and determination of this cause.
4.The application was supported by his affidavit in which it was deposed that his health had deteriorated since he was placed in custody he suffers from hypertension and stomach ulcers which requires urgent medical attention and it was likely that his case will take long to be heard and determined.
5.The State did not file any response to the application but relied on the pre-bail report wherein it was stated that the accused was married to the deceased since 2000 but had separated as at the time of the alleged commission of the offence. It was stated further that the accused was in ill health due to high blood pressure which sometimes lead to convulsion.
6.His relatives were positive about him and that his children were staying with his mother while being supported through their education and upkeep by his brothers. The community were against his release on bond and were still angry with the accused and might react negatively on his release. On the other hand, the relatives of the victim refused to be interviewed.
7.Bond is a constitutional right of every accused person under article 49 and may only be denied where there are compelling reasons advanced by the prosecution. I therefore take the view that it is not for the accused person to apply for bond but for the prosecution to advance on a balance of probability the compelling reasons to enable the Court deny the accused the enjoyment of his rights.
8.In this cause the prosecution offered no compelling reasons and those advanced through the pre- bail reports are not compelling enough to enable the court to deny the accused his rights to basil. I have taken into account the fact that the accused is in need of medical attention which right is also guaranteed under article 28 of the Constitution, human dignity, article 43 (a) to the highest attainable standard of health and Section 5 of Heath Act No. 21 of 2017.
9.The accused is not a subject of prison but health institution and is therefore entitled to be released on bond pending the hearing and determination of the cause herein.
10.The accused shall therefore be released on bond of Kshs. Fifty Thousand (Kshs.50,000) with one surety of similar amount or in the alternative cash bail of Kenya shillings fifty thousand. The same shall during the period of the trial be under regular treatment and monitoring at a Government Hospital to ensure that he constantly take his medication.
11.And it is ordered