1. The applicants by way of Notice of Motion applications brought pursuant to Articles 24(1), 25,26,27,28,43,49, 50, 165(3) (b) & (d),165 (6) & (7) of the Constitution of Kenya, 2010, Sections 71,72,123A and 362 of the Criminal Procedure Code (Cap 75), the Bail and Bond Policy Guidelines, and all other enabling provisions of the law.
2. The applicants are seeking ;-
a) The transfer of JKIA Magistrates Court Criminal case Number E149 of 2025 to Mombasa Chief Magistrates Court for hearing and final determination.
b) The applicants also sought to have this court call for the lower court file and exercise its powers of revision and revise the lower courts decision declining to grant the two applicants bail pending trial.
3. The two Notices of Motion E239 of 2025 and E241 of 2025 were consolidated and heard together under file number E239 of 2025.
4. The grounds upon which the applicants have moved this court are that;-
a). That the learned Magistrate's court set down this case for trial on 16th January 2026, and it is important and urgent that this Application be heard and determined well before then.
b). That this Honorable court must not allow the tarnishing of the judiciary's reputation by accommodating the prosecution's very questionable action of arresting the Applicants at Mama Ngina Drive in Mombasa and thereafter transporting them to Nairobi, without any or any lawful basis, and thereafter charging them at the JKIA's Magistrates Court, in what can only be interpreted as an exercise in forum-shopping on the part of the investigators and prosecution.
c). That the Applicants were subjected to a blatantly unlawful act on the part of the arresting officers and the prosecution who transported them away from their place of detention which was at Mama Ngina Drive in Mombasa and thereafter presenting them before the JKIA Magistrate's Court, in contravention of their Constitutionally guaranteed rights and the provisions of the law applicable.
d). That the Applicants have, by the very act of their being charged at the JKIA courts in Nairobi, been physically removed from, isolated from their families and alienated from their contacts, family structure and their entire support system.
e). That this has severely prejudiced them and has further caused them to be hobbled in their attempt to prepare for their defence at the trial of this case.
f). That this unlawful act has not only prejudiced their ability to prepare for their case and defence, but it has also caused them great distress and has led to the severe deterioration of their health, and they now suffer from critical, life-threatening comorbidities, including uncontrolled Type 2 Diabetes Mellitus with possible renal compromise, cardiac abnormalities, and non-healing wounds, as detailed in the annexed medical reports from the Remand Health Centre. This creates a real, imminent, and irreversible risk of their death(s) and or to their health, dignity, and right to life under Articles 26, 28, and 43 of the Constitution.
g). That the Remand Health Center's own Medical Reports dated 4th December 2025submitted to the court show that with regard to THE 1ST APPLICANT FEISWAL MOHAMED ALI, who is over 59 years old, is :
• He is hypertensive;
• With a known history of Type 2 Diabetes Mellitus;
• Was referred to Kenyatta National Hospital after medical attention at several prison health facilities failed to improve his situation;
• His glycemic control is sub-optimal;
• Has significantly elevated HbA1c of 8.9%;
• With recurrent random blood sugar readings registering above 20.0 mmol/L despite being on oral hypoglycemic therapy;
• Maintaining him in custody is a challenge blocking his dietary and nutrition regulation that is essential for his glycemic control;
• Has deranged UECs and an abnormal fasting lipid profile with elevated triglycerides at 2.44 mmol/L suggestive of possible renal compromise;
• Has developed a non-healing wound on his right lateral malleolus;
• Has developed lower spine pain following a fall from the prison truck;
• Required imaging of the thoracic and lumber-sacral-spine to evaluate the injuries;
h). according to the applicants the recommendations made in the report in respect of the 1 st applicant are that due to his unstable clinical condition, uncontrolled diabetes, possible renal compromise, and ongoing spinal concerns, he requires specialized treatment, consistent medical appointments, follow up, completion of scheduled radiological investigations, effective pain management, and improved nutritional support (which cannot be accorded to him due to the logistical challenges experienced within the custodial environment).
5. That with regard to the 2nd applicant MOHAMMED HASSAN KONTOMA, who is over 75 years old, the Remand Health Center's own Medical Reports dated 1st December 2025 submitted to the court show that:
• He is hypertensive;
• He suffers from type 2 diabetes mellitus;
• He is ailing in custody on active follow-up at the Kenyatta National Hospital both at the diabetic clinic and the hypertensive clinic;
• Have been subjected to over 10 clinical visits to KNH due to poorly controlled glucose levels as well as blood pressure;
• Has had his dosage escalated and insulin initiated;
• He is currently on insulin;
• His cardiac evaluation has revealed sinus rhythm with first degree AV Block with early cardiac abnormalities, mild aortic regurgitation;
• Suffering Peripheral Neuropathy (PNP);
• Suffering features of diabetic foot;
6. The recommendations made in the report in respect of the 2 nd applicant are that due to his advanced age, he requires close monitoring consistent follow up, supportive care, and adequate nutritional support to optimize treatment outcomes (which cannot be accorded to him due to the logistical challenges experienced within the custodial environment).
7. That the breaches of the Applicants' constitutional rights and the preservation of this honorable court's own dignity warrants immediate judicial intervention to prevent further prejudice to the Applicants especially since no prejudice will be occasioned to the Respondent by the granting the Application since it only seeks to enforce constitutional rights, and the balance of convenience tilts in favor of the Applicants being tried at the place of their arrest and or alleged committal of the alleged act complained of and in the vicinity of their homes and support structures at Mombasa.
8. That if the application is not heard expeditiously, the prosecution will have succeeded in their forum-shopping exercise and justice shall not be done because it shall not be seen to have been done.
9. That if the Application is not heard expeditiously, the Applicants will suffer irreparable harm through continued unlawful charging in a court outside the jurisdiction of their arrest and or alleged act complaint of, far away from their families and support structures, leading to the disruption of their ability to mount a defence of their case, and resulting in the deterioration of their health, which cannot be compensated for or made good, while the prosecution's case remains unaffected.
10. This Honourable Court be pleased to grant the Applicants bail pending trial on the following reasonable terms:
a. Cash bail of Kenya Shillings Fifty Thousand (Kshs. 50,000/-) each; OR
b. A personal bond of Kenya Shillings One Hundred Thousand (Kshs.100,000/-) each with one Kenyan surety of similar amount.
11. The applicants further argued that upon compliance with the bail conditions in (3) above, the Applicants be released from custody forthwith.
12. In addition to the financial terms, the following conditions shall apply:
a. The Applicants shall surrender all travel documents (if any) to the Court and shall not apply for new ones.
b. The 1st Applicant shall report to the Officer in Charge, Mombasa Central Police Station, every Tuesday.
c. The 2nd Applicant shall report to the Officer in Charge, Mandera Police Station, every Tuesday.
d. The Applicants shall not directly communicate with, or intimidate any prosecution witness.
e. The Applicants shall provide their current residential addresses and shall not change them without prior leave of the Court.
13. The consolidated application was further supported by the annexed Supporting Affidavits of FEISWAL MOHAMED ALI and MOHAMED HASSAN KONTOMA sworn on the 8th day of December 2025, and on such other or further grounds as may be adduced at the hearing hereof but particularly on the basis that:
14. The applicants contend that the State's own medical reports from the Remand Health Centre (dated 1st and 4th December 2025) confirm both Applicants suffer from severe, unstable, and life-threatening conditions:
15. The 1st Applicant has uncontrolled Type 2 Diabetes (HbA1c 8.9%6, random sugars>20mmol/L), possible renal compromise, a non-healing wound, and spinal injuries from a fall in custody.
16. According to the applicants the report explicitly states he requires specialized treatment, consistent medical appointments, radiological investigations, and improved nutritional support which cannot be accorded in the custodial environment.
17. The 2nd Applicant, aged 75, is at a very advanced age and is an old man by any description, has poorly controlled diabetes and hypertension now requiring insulin, first-degree AV block, mild aortic regurgitation, peripheral neuropathy, and features of a diabetic foot. He requires close monitoring and supportive care which is unavailable in remand.
18. The applicants further contended that the continued detention actively violates their right to the highest attainable standard of health under Article 43(1)(a) and threatens their right to life and dignity under Articles 26 and 28 thus granting bail is a necessary measure to protect these superior constitutional values.
19. The applicants further assert that there has been an unlawful detention and procedural abuse by the respondents. The Applicants were arrested at Mombasa on 26th August 2025 but were not presented in a court within the jurisdiction of the place where they were arrested or suspected of having committed the alleged crime but transported surreptitiously and against their will to Nairobi where they were presented at the JKIA Magistrate's court which promptly extended their detention without having granted them access to their Advocates and or families until 9th September 2025 when they were again presented before the court, a delay of 14 days in blatant violation of Article 49(1)(f) of the Constitution.
20. The applicants therefore argue that granting bail is a necessary remedy for this gross infringement of their right to liberty.
21. According to the applicants the prosecution's conduct in transporting the Applicants from Mombasa (place of arrest) to Nairobi for arraignment, and filing the case at JKIA Courts, appears to be a deliberate case of forum-shopping aimed at inconveniencing the Applicants, increasing their cost of defence, and isolating them from their community ties.
22. In the applicants view, this abuse of process prejudices the Applicants and further tilts the balance in favour of release on bail to ensure equality before the law under Article 27.
23. The applicants argue that there are no compelling reasons for denial of bail. The applicants contended that the prosecution has failed to adduce any compelling reasons as required by Article 49(1)(h) and the triad test set out in Florence R.S.W. Kamau v Republic [2012] eKLR to justify the denial of the Applicants' constitutional right to bail.
24. The applicants maintain that they are not a flight risk and that they are lifelong Kenyan nationals with deep-rooted family, business, and property ties in Mombasa and Mandera Counties respectively.
25. They further argue that they have no recent history of international travel or any evidence suggestive of escape. The 1st Applicant's full compliance with the judicial process in a prior case, leading to his acquittal in 2018, demonstrates his reliability.
26. On possible interference with prosecution witnesses, the applicants contend that the alleged witnesses are professional officers from the Kenya Wildlife Service, an institution with robust internal protocols. There is no specific, evidence-based allegation of attempted interference.
27. The applicants argue that in any event, this perceived risk is fully mitigated by a strict no-contact order as a bail condition.
28. The applicants further argue that they are not a threat to public order and they do not pose any security threat should they be released on bail.
29. The charge relates to a non-violent, regulatory offence under the Wildlife Conservation and Management Act. There is no allegation of violence, use of weapons, or any imminent danger to the public.
30. The applicants further contend that they can ably demonstrate change of circumstances to warrant release on bail since the time the ruling by the trial court was delivered.
31. The applicants urged this court to consider the medical reports presented in court by the Prison Authorities on Monday, 8th December 2025(which were dated 1st and 4th December 2025 respectively) and by way of the learned Magistrate's Rulings dated 18th November 2025 and that of 16th January 2025, that there has been change of circumstances to warrant grant of the orders sought.
32. In support of their plea for bail the applicants cited the case of Republic v Diana Suleiman Said & anothe r [2014] eKLR And Republic v Leonard Kanari Gitau [2016] eKLR and Republic v Irungu alias Jowie & another (Criminal Case 51 of 2018) [2020] KEHC 8361 (KLR) (Crim) (13 February 2020) (Ruling)
33. The applicants further argued that there were additional factors favouring release. According to them, the prosecution misled the lower court by referencing the 1st Applicant's quashed 2014 conviction without disclosing his subsequent acquittal by the High Court in Feisal Mohamed Ali v Republic [2018] KEHC 4601. This breach of the duty of candor undermines the credibility of their opposition to bail.
34. The applicants posited that the proposed bail terms are reasonable, proportionate, and sufficient to secure the Applicants' attendance at trial and the integrity of the judicial process, thereby balancing the interests of justice with their presumption of innocence under Article 50(2)(a).
35. It was further contended for the applicants that the continued remand of the 1st Applicant (58 years) and particularly the 2nd Applicant (75 years) in their precarious health states amounts to pre-trial punishment, contravening the presumption of innocence and the principle of proportionality in limiting rights under Article 24(1).
36. The respondents were opposed to the release of the applicants on bail citing possible interference with prosecution witnesses.
37. The prosecution team led by Mr. Mulama Assistant Director of Public Prosecutions did not name a single witness whom they considered to be under threat.
38. However, the prosecution team informed the court that there was a witness who was under witness protection thus according to them, the denial of bail was proper in the circumstances of this case.
39. The prosecution further argued that the fact that the applicants had named a certain individual in court who was supposed to be an informer, the prosecution postulated that the applicants are persons who may pose a danger to the prosecution witnesses once released on bail.
40. The prosecution in response to the question of venue for the trial argued that they elected to charge the applicants in JKIA since it is the court with the capacity to handle transnational organized crime and most proximate to the KWS headquarters were the effect of dealing in wildlife trophies would be highly felt.
41. The prosecution denied engaging in forum shopping as alleged by the applicants.
42. The prosecution relied on the case of Republic vs Joktan Mayende $ 3 Others {2012} KEHC 5551 (KLR ) in opposing the release of the applicants on account of the possibility of interference with witnesses.
ANALYSIS AND DETERMINATION
43. The applicants have during the hearing of the application faulted the trial magistrate for failing to pronounce herself on the issue of venue for the trial despite them having raised the matter before her and submitted extensively on the same in their written submission.
44. The court has carefully scrutinized the ruling of the trial court in a bid to establish whether the issues complained of by the applicants are merited and whether the ruling has some measure of impropriety, irregularity, incorrectness and or illegality to justify the intervention by this court in exercise of its powers under Section 364 of the Criminal Procedure Code.
45. The applicant has strenuously argued that the removal of the matter from Mombasa where the offence was allegedly committed and arrest effected, was calculated at forum shopping by the prosecution and that there was no plausible excuse for not charging them in Mombasa Law courts.
46. The prosecution stated that it considered where the consequences of the offence would be felt most, and in their view, the Kenya Wildlife Service Headquarters would be the place where that would be greatly felt.
47. I have tried to understand the argument by the prosecution and I must say that it still does not make legal sense to me that effects of illegal dealing in wildlife trophies would be felt at the Headquarters of Kenya Wildlife Service headquarters.
48. It is the considered view of this court that any dealing with any of the endangered species would affect the tourism sector in general which would in turn impact on the economy generally in terms generating the much -needed revenue by government from Park fees and other tourisms sector dependent levies.
49. The impact of such offences would be felt throughout the country thus if the argument were to be that suspects of such crimes be charged on the basis of where the consequence of the offence is felt, then any court within the republic of Kenya would be suitable to try such offenses including the courts in Mombasa.
50. In considering this application, this court has considered the position taken by the court in Abdalla Awadh Abubakar v Inspector General of the National Police Service & another [2019] KEHC 212 (KLR) where the learned Judge held;-
“47. The foregoing findings lead me to consider when this court would consider transferring a criminal case from one court station to another. What considerations are taken into account? The consideration and need to establish the best venue for trial is at the center of administration of criminal justice if the provisions of Section 76, 78, 79, 80 and 81 are given full effect. Those provisions tell me that it is never at discretion and leisure of the prosecution to choose the venue for trial. The law guides choice of venue and the court has the last say. It is that power of the court the Applicants now invoke here. Section 81 Criminal Procedure Code invoked by the application provides:-
Power of High Court to change venue
(1) Whenever it is made to appear to the High Court-
a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto;
or
b) that some question of law of unusual difficulty is likely to arise or
c) that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or
d) that an order under this section will tend to the general convenience of the parties or witnesses; or
e) that such an order is expedient for the ends of justice or is required by any provision of this Code .
(emphasis provided)
48. The intention of parliament in enacting this provision is clear that the court in dealing with an application for transfer considers among other factors; the need for a fair and impartial hearing, determination of some unusually difficult point of law, need to visits the scene, the convenience of the parties and expediency of the ends of justice.
49. In the matter before me, the impartiality is advanced from the Respondents’ side while the Applicant relies on his convenience and rights under the constitution. I have delivered myself sufficiently on the alleged impartiality and conflict just as I have done with the convenience and the Applicants rights. I may only conclude by saying that I do consider it a prejudice to expose the applicant and his co-accused persons to be tried in Nairobi owing to the distance and the attendance travelling and incidental expenses including accommodation and meals. The accused having asserted that his chosen advocate is Mombasa based, it shall be an added prejudice to the Applicant in terms of transport costs from the counsel between Nairobi and Mombasa. In effect I repeat that the choice of Principle Magistrates Court at JKIA, Nairobi, by the prosecution will not pass as expedient to the administration of justice as it will not only expose the applicant to unwarranted expenses but will also entail the ODPP spending public funds that can be avoided and saved ( emphasis added).
50. I direct that the case be transferred from Nairobi to a court within and proximate the region where the offence was allegedly committed.”
51. The applicants in the above-quoted matter were charged before the JKIA court just like in the instant case and applied to have their case transferred to Mombasa just like has happened in this case.
52. The court having interrogated the matter against the express provisions of Section 76, 78, 79, 80 and 81 the Criminal Procedure Code decided that it was in the interests of justice to have the matter transferred to Mombasa for trial and eventual disposal.
53. The applicants have expressed their concern of having to defend this matter far away from the homes considering the multiplicity of issues they have raised about their respective health conditions and the special care that they may require from time to time.
54. If truly the presumption of innocence was to mean something to an accused person facing a criminal trial, then all the procedural safeguards set by their elected representatives through legislation must be availed to them to ensure a fair trial.
55. The offence having been allegedly committed in Mombasa as per the charge sheet and the arrest having been effected thereat, the prosecution needed to explain to this court why Mombasa Courts were considered unsuitable for the trial of the applicants.
56. The state must ensure, in all its dealing upon the arrest and decision to prosecute an individual, that it acts within the confines of the law and does not unnecessary expose itself to the accusations of forum shopping as has been alleged in this matter. An innocent, fair and objective minded observer should be able to see transparency in the matter the choice of venue is arrived at in line with the requirements of Articles 10 and 47 of the Constitution of Kenya.
57. As I have stated before, the respondents have not persuaded this court that the decision to charge the applicants over 500km from the scene of crime and point of arrest was in line with the provisions of Section 71 of the Criminal Procedure Code.
58. The Criminal procedure envisages under Section 71that an offence will ordinarily be tried by a court within the local limits of whose jurisdiction it was committed or within the local limits of whose jurisdiction the accused was apprehended or is in custody on a charge for the offence.
59. The respondents did not deny that the offence was allegedly committed in Mombasa and that is where the applicants were arrested and held in custody before there transfer to Nairobi. It follows therefore the court contemplated under section 71 of the Criminal Procedure Code was the Mombasa Chief Magistrates Court.
60. The provisions of Section 71 cannot be avoided by resulting to Section 72 of the Criminal Procedure more so where the state does not provide reasons for avoiding the court contemplated under Section 71 of the Criminal Procedure Code. The choice of venue would have to meet the strict criteria set by the law and must be able to withstand the test of procedural fairness.
61. This court agrees with the applicants that the choice of venue touches on the right to a fair trial. The right to a fair trail cannot be limited under Article 25 and 50 of the Constitution. It includes the equality of arms be ensuring that an accused person is not removed from the court that would ordinarily try him at the least inconvenience to him to a court that would put him at great expense during the trial.
62. The facilities to be provided to an accused under Article 50 for preparation of his defense would include the presentation of the accused to an open court the is within his reach at minimal cost should he be released on bail.
63. The spread of courts throughout the country was specifically designed to bring services closer to the people and the was cemented by Kenyans through the enactment of Article 6(3) of the Constitution commanding all state organs to devolve services.
64. The record shows that the issue of venue of trial was a live issue before the trail court and that the learned honorable magistrate did not address it in her ruling. It was canvassed at length by Senior Counsel Taib as per the notes taken by the learned Honorable Magistrate but it would appear that at the time of writing the Ruling the trail court confined itself to the issue of bail. The complaint on venue was a challenge on jurisdiction which the trial court ought to have determined in limine .
65. It is a matter that the court could have suo moto raised but considering that counsel took it up orally and through written submissions, it was improper and irregular for trial court to ignore it and proceed as if the matter was never raised. I would want to imagine that the slip was through sheer inadvertence but jurisdiction is everything and since that has now been raised before me, I must pronounce myself on it. See Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR)
66. Accordingly, having reviewed the record, and noted that the alleged offence as per the particulars in the charge sheet was allegedly committed within Mombasa and that the applicants were arrested therefrom, the court that had the primary jurisdiction to try the offence was the Chief Magistrates Court Mombasa and therefore the prosecution erred in transporting the accused persons all the way to Nairobi for trial without assigning any reason for such action. As I stated the effects of Wildlife Crime would be felt across the country thus the Courts in Mombasa would also be suited to deal with the crime.
67. The decision of the respondent to charge the applicants in Nairobi does not meet the test of fair administrative action and violated the express provisions of Section 71 of the Criminal Procedure Code. The matter is therefore transferred to the Chief Magistrates Court Mombasa for hearing and determination. The trial courts omission to render itself on this issue has invited this court to exercise it supervisory jurisdiction in line with Sections 362 and 364 of the Criminal Procedure code as read with the provisions of Article 165 of the Constitution.
68. Turning on to the question of whether or not to release the applicants on bail, this court has carefully looked at the ruling by the learned honorable magistrate on the matter of bail.
69. The court declined to grant bail citing the issue of interference with witnesses. The court did not render itself on the issue of a flight risk thus the only issue that renders itself for consideration is the issue of interference with witnesses.
70. The record shows that there was reference to a witness under witness protection. The court however glossed over the matter and ended up stating;-
“ inkeeping with the above , Feiswal and Mohamed are denied bond at this stage until the prosecution witness/witnesses testify. The defense will then be at liberty to apply for the release of the accused persons’’ .
71. It would appear the learned magistrate was not certain whether the witness likely to be interfered with was one or more.
72. The court in addressing the issue of bail is enjoined to consider whether there are compelling reasons for the court to deny bail.
73. Article 49 (1) (h) of the Constitution only allows the denial of bail where the prosecution establishes compelling reasons. Whenever the prosecution wishes to have the accused held in custody pending trial, it assumes the burden of establishing on a balance of probabilities that there are compelling reasons to deny bail. The right to liberty is an entitlement to the accused since he is presumed innocent until proven to be guilty. Liberty must therefore not be curtailed whimsically or the question of bail considered lightly.
74. The right to bail is directly related to the right to a fair trial in that an accused person once released on bail he is able to prepare for his trial from the comfort of his residence thus he is able to freely consult with his counsel unlike when he is held in custody and has to do so in a controlled environment that also may affect the amount of time he can spent with his advocate or even the frequency of such consultations.
75. The discretion as to whether or not to grant bail must therefore be judiciously exercised.
76. The possibility of interference with witnesses is a compelling reason to deny bail. However, the prosecution must be able to demonstrate the basis upon which such conc
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2. The applicants are seeking ;-
a) The transfer of JKIA Magistrates Court Criminal case Number E149 of 2025 to Mombasa Chief Magistrates Court for hearing and final determination.
b) The applicants also sought to have this court call for the lower court file and exercise its powers of revision and revise the lower courts decision declining to grant the two applicants bail pending trial.
3. The two Notices of Motion E239 of 2025 and E241 of 2025 were consolidated and heard together under file number E239 of 2025.
4. The grounds upon which the applicants have moved this court are that;-
a). That the learned Magistrate's court set down this case for trial on 16th January 2026, and it is important and urgent that this Application be heard and determined well before then.
b). That this Honorable court must not allow the tarnishing of the judiciary's reputation by accommodating the prosecution's very questionable action of arresting the Applicants at Mama Ngina Drive in Mombasa and thereafter transporting them to Nairobi, without any or any lawful basis, and thereafter charging them at the JKIA's Magistrates Court, in what can only be interpreted as an exercise in forum-shopping on the part of the investigators and prosecution.
c). That the Applicants were subjected to a blatantly unlawful act on the part of the arresting officers and the prosecution who transported them away from their place of detention which was at Mama Ngina Drive in Mombasa and thereafter presenting them before the JKIA Magistrate's Court, in contravention of their Constitutionally guaranteed rights and the provisions of the law applicable.
d). That the Applicants have, by the very act of their being charged at the JKIA courts in Nairobi, been physically removed from, isolated from their families and alienated from their contacts, family structure and their entire support system.
e). That this has severely prejudiced them and has further caused them to be hobbled in their attempt to prepare for their defence at the trial of this case.
f). That this unlawful act has not only prejudiced their ability to prepare for their case and defence, but it has also caused them great distress and has led to the severe deterioration of their health, and they now suffer from critical, life-threatening comorbidities, including uncontrolled Type 2 Diabetes Mellitus with possible renal compromise, cardiac abnormalities, and non-healing wounds, as detailed in the annexed medical reports from the Remand Health Centre. This creates a real, imminent, and irreversible risk of their death(s) and or to their health, dignity, and right to life under Articles 26, 28, and 43 of the Constitution.
g). That the Remand Health Center's own Medical Reports dated 4th December 2025submitted to the court show that with regard to THE 1ST APPLICANT FEISWAL MOHAMED ALI, who is over 59 years old, is :
• He is hypertensive;
• With a known history of Type 2 Diabetes Mellitus;
• Was referred to Kenyatta National Hospital after medical attention at several prison health facilities failed to improve his situation;
• His glycemic control is sub-optimal;
• Has significantly elevated HbA1c of 8.9%;
• With recurrent random blood sugar readings registering above 20.0 mmol/L despite being on oral hypoglycemic therapy;
• Maintaining him in custody is a challenge blocking his dietary and nutrition regulation that is essential for his glycemic control;
• Has deranged UECs and an abnormal fasting lipid profile with elevated triglycerides at 2.44 mmol/L suggestive of possible renal compromise;
• Has developed a non-healing wound on his right lateral malleolus;
• Has developed lower spine pain following a fall from the prison truck;
• Required imaging of the thoracic and lumber-sacral-spine to evaluate the injuries;
h). according to the applicants the recommendations made in the report in respect of the 1 st applicant are that due to his unstable clinical condition, uncontrolled diabetes, possible renal compromise, and ongoing spinal concerns, he requires specialized treatment, consistent medical appointments, follow up, completion of scheduled radiological investigations, effective pain management, and improved nutritional support (which cannot be accorded to him due to the logistical challenges experienced within the custodial environment).
5. That with regard to the 2nd applicant MOHAMMED HASSAN KONTOMA, who is over 75 years old, the Remand Health Center's own Medical Reports dated 1st December 2025 submitted to the court show that:
• He is hypertensive;
• He suffers from type 2 diabetes mellitus;
• He is ailing in custody on active follow-up at the Kenyatta National Hospital both at the diabetic clinic and the hypertensive clinic;
• Have been subjected to over 10 clinical visits to KNH due to poorly controlled glucose levels as well as blood pressure;
• Has had his dosage escalated and insulin initiated;
• He is currently on insulin;
• His cardiac evaluation has revealed sinus rhythm with first degree AV Block with early cardiac abnormalities, mild aortic regurgitation;
• Suffering Peripheral Neuropathy (PNP);
• Suffering features of diabetic foot;
6. The recommendations made in the report in respect of the 2 nd applicant are that due to his advanced age, he requires close monitoring consistent follow up, supportive care, and adequate nutritional support to optimize treatment outcomes (which cannot be accorded to him due to the logistical challenges experienced within the custodial environment).
7. That the breaches of the Applicants' constitutional rights and the preservation of this honorable court's own dignity warrants immediate judicial intervention to prevent further prejudice to the Applicants especially since no prejudice will be occasioned to the Respondent by the granting the Application since it only seeks to enforce constitutional rights, and the balance of convenience tilts in favor of the Applicants being tried at the place of their arrest and or alleged committal of the alleged act complained of and in the vicinity of their homes and support structures at Mombasa.
8. That if the application is not heard expeditiously, the prosecution will have succeeded in their forum-shopping exercise and justice shall not be done because it shall not be seen to have been done.
9. That if the Application is not heard expeditiously, the Applicants will suffer irreparable harm through continued unlawful charging in a court outside the jurisdiction of their arrest and or alleged act complaint of, far away from their families and support structures, leading to the disruption of their ability to mount a defence of their case, and resulting in the deterioration of their health, which cannot be compensated for or made good, while the prosecution's case remains unaffected.
10. This Honourable Court be pleased to grant the Applicants bail pending trial on the following reasonable terms:
a. Cash bail of Kenya Shillings Fifty Thousand (Kshs. 50,000/-) each; OR
b. A personal bond of Kenya Shillings One Hundred Thousand (Kshs.100,000/-) each with one Kenyan surety of similar amount.
11. The applicants further argued that upon compliance with the bail conditions in (3) above, the Applicants be released from custody forthwith.
12. In addition to the financial terms, the following conditions shall apply:
a. The Applicants shall surrender all travel documents (if any) to the Court and shall not apply for new ones.
b. The 1st Applicant shall report to the Officer in Charge, Mombasa Central Police Station, every Tuesday.
c. The 2nd Applicant shall report to the Officer in Charge, Mandera Police Station, every Tuesday.
d. The Applicants shall not directly communicate with, or intimidate any prosecution witness.
e. The Applicants shall provide their current residential addresses and shall not change them without prior leave of the Court.
13. The consolidated application was further supported by the annexed Supporting Affidavits of FEISWAL MOHAMED ALI and MOHAMED HASSAN KONTOMA sworn on the 8th day of December 2025, and on such other or further grounds as may be adduced at the hearing hereof but particularly on the basis that:
14. The applicants contend that the State's own medical reports from the Remand Health Centre (dated 1st and 4th December 2025) confirm both Applicants suffer from severe, unstable, and life-threatening conditions:
15. The 1st Applicant has uncontrolled Type 2 Diabetes (HbA1c 8.9%6, random sugars>20mmol/L), possible renal compromise, a non-healing wound, and spinal injuries from a fall in custody.
16. According to the applicants the report explicitly states he requires specialized treatment, consistent medical appointments, radiological investigations, and improved nutritional support which cannot be accorded in the custodial environment.
17. The 2nd Applicant, aged 75, is at a very advanced age and is an old man by any description, has poorly controlled diabetes and hypertension now requiring insulin, first-degree AV block, mild aortic regurgitation, peripheral neuropathy, and features of a diabetic foot. He requires close monitoring and supportive care which is unavailable in remand.
18. The applicants further contended that the continued detention actively violates their right to the highest attainable standard of health under Article 43(1)(a) and threatens their right to life and dignity under Articles 26 and 28 thus granting bail is a necessary measure to protect these superior constitutional values.
19. The applicants further assert that there has been an unlawful detention and procedural abuse by the respondents. The Applicants were arrested at Mombasa on 26th August 2025 but were not presented in a court within the jurisdiction of the place where they were arrested or suspected of having committed the alleged crime but transported surreptitiously and against their will to Nairobi where they were presented at the JKIA Magistrate's court which promptly extended their detention without having granted them access to their Advocates and or families until 9th September 2025 when they were again presented before the court, a delay of 14 days in blatant violation of Article 49(1)(f) of the Constitution.
20. The applicants therefore argue that granting bail is a necessary remedy for this gross infringement of their right to liberty.
21. According to the applicants the prosecution's conduct in transporting the Applicants from Mombasa (place of arrest) to Nairobi for arraignment, and filing the case at JKIA Courts, appears to be a deliberate case of forum-shopping aimed at inconveniencing the Applicants, increasing their cost of defence, and isolating them from their community ties.
22. In the applicants view, this abuse of process prejudices the Applicants and further tilts the balance in favour of release on bail to ensure equality before the law under Article 27.
23. The applicants argue that there are no compelling reasons for denial of bail. The applicants contended that the prosecution has failed to adduce any compelling reasons as required by Article 49(1)(h) and the triad test set out in Florence R.S.W. Kamau v Republic [2012] eKLR to justify the denial of the Applicants' constitutional right to bail.
24. The applicants maintain that they are not a flight risk and that they are lifelong Kenyan nationals with deep-rooted family, business, and property ties in Mombasa and Mandera Counties respectively.
25. They further argue that they have no recent history of international travel or any evidence suggestive of escape. The 1st Applicant's full compliance with the judicial process in a prior case, leading to his acquittal in 2018, demonstrates his reliability.
26. On possible interference with prosecution witnesses, the applicants contend that the alleged witnesses are professional officers from the Kenya Wildlife Service, an institution with robust internal protocols. There is no specific, evidence-based allegation of attempted interference.
27. The applicants argue that in any event, this perceived risk is fully mitigated by a strict no-contact order as a bail condition.
28. The applicants further argue that they are not a threat to public order and they do not pose any security threat should they be released on bail.
29. The charge relates to a non-violent, regulatory offence under the Wildlife Conservation and Management Act. There is no allegation of violence, use of weapons, or any imminent danger to the public.
30. The applicants further contend that they can ably demonstrate change of circumstances to warrant release on bail since the time the ruling by the trial court was delivered.
31. The applicants urged this court to consider the medical reports presented in court by the Prison Authorities on Monday, 8th December 2025(which were dated 1st and 4th December 2025 respectively) and by way of the learned Magistrate's Rulings dated 18th November 2025 and that of 16th January 2025, that there has been change of circumstances to warrant grant of the orders sought.
32. In support of their plea for bail the applicants cited the case of Republic v Diana Suleiman Said & anothe r [2014] eKLR And Republic v Leonard Kanari Gitau [2016] eKLR and Republic v Irungu alias Jowie & another (Criminal Case 51 of 2018) [2020] KEHC 8361 (KLR) (Crim) (13 February 2020) (Ruling)
33. The applicants further argued that there were additional factors favouring release. According to them, the prosecution misled the lower court by referencing the 1st Applicant's quashed 2014 conviction without disclosing his subsequent acquittal by the High Court in Feisal Mohamed Ali v Republic [2018] KEHC 4601. This breach of the duty of candor undermines the credibility of their opposition to bail.
34. The applicants posited that the proposed bail terms are reasonable, proportionate, and sufficient to secure the Applicants' attendance at trial and the integrity of the judicial process, thereby balancing the interests of justice with their presumption of innocence under Article 50(2)(a).
35. It was further contended for the applicants that the continued remand of the 1st Applicant (58 years) and particularly the 2nd Applicant (75 years) in their precarious health states amounts to pre-trial punishment, contravening the presumption of innocence and the principle of proportionality in limiting rights under Article 24(1).
36. The respondents were opposed to the release of the applicants on bail citing possible interference with prosecution witnesses.
37. The prosecution team led by Mr. Mulama Assistant Director of Public Prosecutions did not name a single witness whom they considered to be under threat.
38. However, the prosecution team informed the court that there was a witness who was under witness protection thus according to them, the denial of bail was proper in the circumstances of this case.
39. The prosecution further argued that the fact that the applicants had named a certain individual in court who was supposed to be an informer, the prosecution postulated that the applicants are persons who may pose a danger to the prosecution witnesses once released on bail.
40. The prosecution in response to the question of venue for the trial argued that they elected to charge the applicants in JKIA since it is the court with the capacity to handle transnational organized crime and most proximate to the KWS headquarters were the effect of dealing in wildlife trophies would be highly felt.
41. The prosecution denied engaging in forum shopping as alleged by the applicants.
42. The prosecution relied on the case of Republic vs Joktan Mayende $ 3 Others {2012} KEHC 5551 (KLR ) in opposing the release of the applicants on account of the possibility of interference with witnesses.
ANALYSIS AND DETERMINATION
43. The applicants have during the hearing of the application faulted the trial magistrate for failing to pronounce herself on the issue of venue for the trial despite them having raised the matter before her and submitted extensively on the same in their written submission.
44. The court has carefully scrutinized the ruling of the trial court in a bid to establish whether the issues complained of by the applicants are merited and whether the ruling has some measure of impropriety, irregularity, incorrectness and or illegality to justify the intervention by this court in exercise of its powers under Section 364 of the Criminal Procedure Code.
45. The applicant has strenuously argued that the removal of the matter from Mombasa where the offence was allegedly committed and arrest effected, was calculated at forum shopping by the prosecution and that there was no plausible excuse for not charging them in Mombasa Law courts.
46. The prosecution stated that it considered where the consequences of the offence would be felt most, and in their view, the Kenya Wildlife Service Headquarters would be the place where that would be greatly felt.
47. I have tried to understand the argument by the prosecution and I must say that it still does not make legal sense to me that effects of illegal dealing in wildlife trophies would be felt at the Headquarters of Kenya Wildlife Service headquarters.
48. It is the considered view of this court that any dealing with any of the endangered species would affect the tourism sector in general which would in turn impact on the economy generally in terms generating the much -needed revenue by government from Park fees and other tourisms sector dependent levies.
49. The impact of such offences would be felt throughout the country thus if the argument were to be that suspects of such crimes be charged on the basis of where the consequence of the offence is felt, then any court within the republic of Kenya would be suitable to try such offenses including the courts in Mombasa.
50. In considering this application, this court has considered the position taken by the court in Abdalla Awadh Abubakar v Inspector General of the National Police Service & another [2019] KEHC 212 (KLR) where the learned Judge held;-
“47. The foregoing findings lead me to consider when this court would consider transferring a criminal case from one court station to another. What considerations are taken into account? The consideration and need to establish the best venue for trial is at the center of administration of criminal justice if the provisions of Section 76, 78, 79, 80 and 81 are given full effect. Those provisions tell me that it is never at discretion and leisure of the prosecution to choose the venue for trial. The law guides choice of venue and the court has the last say. It is that power of the court the Applicants now invoke here. Section 81 Criminal Procedure Code invoked by the application provides:-
Power of High Court to change venue
(1) Whenever it is made to appear to the High Court-
a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto;
or
b) that some question of law of unusual difficulty is likely to arise or
c) that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or
d) that an order under this section will tend to the general convenience of the parties or witnesses; or
e) that such an order is expedient for the ends of justice or is required by any provision of this Code .
(emphasis provided)
48. The intention of parliament in enacting this provision is clear that the court in dealing with an application for transfer considers among other factors; the need for a fair and impartial hearing, determination of some unusually difficult point of law, need to visits the scene, the convenience of the parties and expediency of the ends of justice.
49. In the matter before me, the impartiality is advanced from the Respondents’ side while the Applicant relies on his convenience and rights under the constitution. I have delivered myself sufficiently on the alleged impartiality and conflict just as I have done with the convenience and the Applicants rights. I may only conclude by saying that I do consider it a prejudice to expose the applicant and his co-accused persons to be tried in Nairobi owing to the distance and the attendance travelling and incidental expenses including accommodation and meals. The accused having asserted that his chosen advocate is Mombasa based, it shall be an added prejudice to the Applicant in terms of transport costs from the counsel between Nairobi and Mombasa. In effect I repeat that the choice of Principle Magistrates Court at JKIA, Nairobi, by the prosecution will not pass as expedient to the administration of justice as it will not only expose the applicant to unwarranted expenses but will also entail the ODPP spending public funds that can be avoided and saved ( emphasis added).
50. I direct that the case be transferred from Nairobi to a court within and proximate the region where the offence was allegedly committed.”
51. The applicants in the above-quoted matter were charged before the JKIA court just like in the instant case and applied to have their case transferred to Mombasa just like has happened in this case.
52. The court having interrogated the matter against the express provisions of Section 76, 78, 79, 80 and 81 the Criminal Procedure Code decided that it was in the interests of justice to have the matter transferred to Mombasa for trial and eventual disposal.
53. The applicants have expressed their concern of having to defend this matter far away from the homes considering the multiplicity of issues they have raised about their respective health conditions and the special care that they may require from time to time.
54. If truly the presumption of innocence was to mean something to an accused person facing a criminal trial, then all the procedural safeguards set by their elected representatives through legislation must be availed to them to ensure a fair trial.
55. The offence having been allegedly committed in Mombasa as per the charge sheet and the arrest having been effected thereat, the prosecution needed to explain to this court why Mombasa Courts were considered unsuitable for the trial of the applicants.
56. The state must ensure, in all its dealing upon the arrest and decision to prosecute an individual, that it acts within the confines of the law and does not unnecessary expose itself to the accusations of forum shopping as has been alleged in this matter. An innocent, fair and objective minded observer should be able to see transparency in the matter the choice of venue is arrived at in line with the requirements of Articles 10 and 47 of the Constitution of Kenya.
57. As I have stated before, the respondents have not persuaded this court that the decision to charge the applicants over 500km from the scene of crime and point of arrest was in line with the provisions of Section 71 of the Criminal Procedure Code.
58. The Criminal procedure envisages under Section 71that an offence will ordinarily be tried by a court within the local limits of whose jurisdiction it was committed or within the local limits of whose jurisdiction the accused was apprehended or is in custody on a charge for the offence.
59. The respondents did not deny that the offence was allegedly committed in Mombasa and that is where the applicants were arrested and held in custody before there transfer to Nairobi. It follows therefore the court contemplated under section 71 of the Criminal Procedure Code was the Mombasa Chief Magistrates Court.
60. The provisions of Section 71 cannot be avoided by resulting to Section 72 of the Criminal Procedure more so where the state does not provide reasons for avoiding the court contemplated under Section 71 of the Criminal Procedure Code. The choice of venue would have to meet the strict criteria set by the law and must be able to withstand the test of procedural fairness.
61. This court agrees with the applicants that the choice of venue touches on the right to a fair trial. The right to a fair trail cannot be limited under Article 25 and 50 of the Constitution. It includes the equality of arms be ensuring that an accused person is not removed from the court that would ordinarily try him at the least inconvenience to him to a court that would put him at great expense during the trial.
62. The facilities to be provided to an accused under Article 50 for preparation of his defense would include the presentation of the accused to an open court the is within his reach at minimal cost should he be released on bail.
63. The spread of courts throughout the country was specifically designed to bring services closer to the people and the was cemented by Kenyans through the enactment of Article 6(3) of the Constitution commanding all state organs to devolve services.
64. The record shows that the issue of venue of trial was a live issue before the trail court and that the learned honorable magistrate did not address it in her ruling. It was canvassed at length by Senior Counsel Taib as per the notes taken by the learned Honorable Magistrate but it would appear that at the time of writing the Ruling the trail court confined itself to the issue of bail. The complaint on venue was a challenge on jurisdiction which the trial court ought to have determined in limine .
65. It is a matter that the court could have suo moto raised but considering that counsel took it up orally and through written submissions, it was improper and irregular for trial court to ignore it and proceed as if the matter was never raised. I would want to imagine that the slip was through sheer inadvertence but jurisdiction is everything and since that has now been raised before me, I must pronounce myself on it. See Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR)
66. Accordingly, having reviewed the record, and noted that the alleged offence as per the particulars in the charge sheet was allegedly committed within Mombasa and that the applicants were arrested therefrom, the court that had the primary jurisdiction to try the offence was the Chief Magistrates Court Mombasa and therefore the prosecution erred in transporting the accused persons all the way to Nairobi for trial without assigning any reason for such action. As I stated the effects of Wildlife Crime would be felt across the country thus the Courts in Mombasa would also be suited to deal with the crime.
67. The decision of the respondent to charge the applicants in Nairobi does not meet the test of fair administrative action and violated the express provisions of Section 71 of the Criminal Procedure Code. The matter is therefore transferred to the Chief Magistrates Court Mombasa for hearing and determination. The trial courts omission to render itself on this issue has invited this court to exercise it supervisory jurisdiction in line with Sections 362 and 364 of the Criminal Procedure code as read with the provisions of Article 165 of the Constitution.
68. Turning on to the question of whether or not to release the applicants on bail, this court has carefully looked at the ruling by the learned honorable magistrate on the matter of bail.
69. The court declined to grant bail citing the issue of interference with witnesses. The court did not render itself on the issue of a flight risk thus the only issue that renders itself for consideration is the issue of interference with witnesses.
70. The record shows that there was reference to a witness under witness protection. The court however glossed over the matter and ended up stating;-
“ inkeeping with the above , Feiswal and Mohamed are denied bond at this stage until the prosecution witness/witnesses testify. The defense will then be at liberty to apply for the release of the accused persons’’ .
71. It would appear the learned magistrate was not certain whether the witness likely to be interfered with was one or more.
72. The court in addressing the issue of bail is enjoined to consider whether there are compelling reasons for the court to deny bail.
73. Article 49 (1) (h) of the Constitution only allows the denial of bail where the prosecution establishes compelling reasons. Whenever the prosecution wishes to have the accused held in custody pending trial, it assumes the burden of establishing on a balance of probabilities that there are compelling reasons to deny bail. The right to liberty is an entitlement to the accused since he is presumed innocent until proven to be guilty. Liberty must therefore not be curtailed whimsically or the question of bail considered lightly.
74. The right to bail is directly related to the right to a fair trial in that an accused person once released on bail he is able to prepare for his trial from the comfort of his residence thus he is able to freely consult with his counsel unlike when he is held in custody and has to do so in a controlled environment that also may affect the amount of time he can spent with his advocate or even the frequency of such consultations.
75. The discretion as to whether or not to grant bail must therefore be judiciously exercised.
76. The possibility of interference with witnesses is a compelling reason to deny bail. However, the prosecution must be able to demonstrate the basis upon which such conc
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