ABDUL HASSAN ATHMAN AND HAJI BABU NDAU MOHAMED AND 2 Others VS ODPP

(BEING A REVISION OF THE ORDERS OF THE TRIAL COURT IN THE CHIEF MAGISTRATE’S COURT AT SHANZU LAW COURTS (R. MBOGO SRM) IN CRIMINAL CASE NUMBER E842 OF 2024 ISSUED ON 26/9/2024)

1.    The Applicants’ Application dated 27/09/2024, is brought under Articles 48,49,50 and 165 (3)and (7)  of The Constitution, section 362, 364 and 365 of the Criminal Procedure Code, Order 40 of the Civil Procedure Code and any other enabling provision.
2.    They were seeking that the court calls for the proceedings by the Trial court, so to ascertain the legality, correctness or propriety of the orders in that file being CM’s Court at Shanzu,  Criminal Case Number No. E842 of 2024.
3.    The Applicants prayed that the order for continued Pre-trial detention be revised and they be released un conditionally or they be granted reasonable bond or bail terms. The Application is supported by an affidavit sworn by Violet Adera.


4.    From the Application,  and the record which was availed, the Applicants were arrested on 20/09/2024.  They say they were shuffled between police stations and eventually charged in court on 23/09/2024.  After the plea was taken, the state through Mr. Musyoka, indicated that Prosecution was opposed to the release of the Applicants on bond.  He stated that an Affidavit had been sworn by one Irene Karugo. 

5.    The Hon. Trial Court indicated that the Affidavit was not on record.  Mr. Musyoka, suggested that the deponent , who was in court, be put on the dock.  The defence team objected to this proposal but, eventually , it sailed through and she was sworn. She stated her grounds and the defence team cross examined her.  The gist of the state’s objection  to bond was that:

i.    The Nationality of the 1st Applicant was unknown.  He was thought to be a Tanzanian.
ii.    That the 2nd Applicant had been arrested in Machakos as it was suspected that he was escaping.
iii.    That the residences of the 3rd and 4th respondents were unknown.
iv.    That other suspects were yet to be arrested and there may be interferences. 

6.    The Trial Court deferred its ruling on bond/bail to the 26/09/2024.

7.    On this 26th of September the Hon. Trial Court indeed did deliver what can be described as a well-reasoned ruling.  The Hon magistrate cited the relevant constitutional and legal provisions and eventually found that the 4th accused persons were entitled to bond. 

8.    There appears to be a small error on the 2nd last page  of the typed ruling , where at paragraph 3 the  court states that ” I have considered the reasons advanced by the state and I have also considered the facts which came out during the cross examination of the Investigating Officer.  It’s my considered view that the threshold to deny bond has met by the prosecution through the evidence adduced by the Investigating Officer.”

9.     I say this is an error as it out of place with the rest of the reasoning and finding by the trial court . This is what the rest of the Ruling states “ As it stands, the application is hinged on speculation and assertions and has not been supported by concrete evidence. A bond is supposed to secure the attendance of the accused in a trial.  Nothing has been placed before the court to show that the accused persons won’t attend trial or they are a flight risk.  The Investigating Officer when she was being cross examined on the fixed abode of the accused persons, she admitted that she had not taken steps to inquire from them as to where they lived or where they worked.  On interference with witnesses, I find that there was no evidence to suggest that the accused persons knew the said witnesses or had approached or threatened them in anyway or were likely to interfere with them.”

10.    Up to this point the Defence was happy.    It is the last paragraph of the ruling which  they have picked a quarrel with.  After the above finding, The Hon. Magistrate added” to this end and to enable the court to reach an appropriate bond, I direct that a pre bail report be filed to enable the court appraise itself on the accused persons previous antecedents on bond and bail, their living abodes , the views of the local community  and the views of the complainant.”

11.    It is this part of the decision that the Applicants are aggrieved with. The  defence  had asked that the said report be filed within 7 days  but the court gave 14 days.

12.     The Applicants’point out that since their arrest on 20/09/2024, they had been in custody for around 7 days  by this 26th  day of September2024 .  That  the additional 14 days will make it 21 days  pre trial detention and these may be more if the court takes time to consider the report filed by the Probation department. 

13.    To them what the court did was give with the right hand and take away with the left hand.  Of particular concern was the health status of the 3rd and 4th accused.  They had pointed out that the investigation officer had conceded ¸during cross examination,that the 4th Applicant  was sick and had even taken her to hospital whilst in custody.  That even during the proceedings the 4th accused person was seated so as to conceal that she still had the drip on her hand. 

14.    That it was unnecessarily punitive to them court to ask for a Probation Officer’s report and detain the Applicants for 21 days when the very court had already found that the accused persons are entitled to bond as they were not a flight risk and the state had not proved their the allegations.

15.     The trial court has indicated that the purpose of the report is to enable them know the antecedents of the Applicants especially in matter to bail and bond and also get the sentiments of the victim and the community.

16.    The state opposed the Application but basically they have high lighted the concerns of the I O and pointed out that there is no error on the record.

17.    The court agrees that the reasons given by the trial court in seeking the pre bail report are very noble and prudent considerations.  The question is, why seek the input after the decision to grant bail has been given? How will these aid the court?  Ordinarily, the report ought to have been requested for before the decision.

18.     The court is aware that the matter has garnered intense public scrutiny and has been covered widely in both the main stream and social media.  There is a loud , country wide clarion call for justice same the victim.

17. Indeed the rights of the victim are a key consideration in any trial as was held in the case of State v Lucas Onyango Walo [2012] eKLR, where court held that:
“Justice is for both parties in any case.  The victim of the offence and the accused person.”
18. The court is also awake to the provisions of Section 10 of the Victim Protection Act No. 17 of 2014, which states as follows:
        10 (1) A victim has a right to:-
a) Be free from intimidation, harassment, fear, tampering, bribery, corruption and abuse;
b) Have their safety and that of their family considered in determining the conditions of bail and release of the offender; and
c) Have their property protected

19.    One must however ask, what is the face of Justice or how should justice look like?  One thing I am certain of, is that the court and stakeholders in the criminal justice sector, should not act hastily or in a high handed manner, out of fear or pressure and in the process, breach the tenants of the constitution especially the right to a fair trial which is one of the non derogable rights.

20.The presumption of innocent until proven guilty is  a  key pillar upon which  of our criminal procedure rests .  If the investigators and the court fall for high handed tactics which breach the constitutional threshold then we will be giving ammunition to the defence.

20.     The Prosecution  may get the short lived success  in the face of a headline grabbing arrest or charge, but if the case is not founded on proper investigations and strict adherence to the  proper process, then the success is  a keen to the proverbial house built on straw.  When the strong winds of close  constitutional scrutiny and cross examination blow, the illusion of Justice will be blown off. 

22.On pre trial detention, the court finds good guidance in the wisdom of the Court of Appeal Judge Luka kimaru ,Then A Judge of the high court, in the case of Michael Rotich vs Republic, 2016Eklr where the court stated
“The right to liberty and freedom is a fundamental right that is inherent to every human being.  Article 29 of the Constitution recognizes this fundamental right to freedom. It provides thus:
“Every person has the right to freedom and security of the person, which includes the right not to be –
(a) deprived of freedom arbitrarily or without just course;
(b) detained without trial, except during a state of emergency, in which case the detention is subject toArticle 58;
(c) ….”
23.The court  added that”  courts are under a constitutional duty to jealously protect this right to liberty and freedom. The right can only be curtailed in circumstances provided under the Constitution and Statute.
.The Judge cited an Indian Supreme Court case cited by the State, Neeru Yadav –Vs- State of U.P. & Another Criminal Appeal No.2587 of 2014, the court held at Page 12:
“…we are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of constitutional right and accentuated further on human rights principles. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be paralyzed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order.”
24.In Kenya, Ibrahim J (as he then was) stated as follows in Republic –Vs- Danson Mgunya & Another [2010] eKLR:
“Liberty is precious and no one’s liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted. I will never take liberty for granted and I know neither will Dr. Khaminwa having both experience in the meaning of detention without trial and solitary confinement at Kamiti Prison during the struggle for the Second Liberation. Dr. Khaminwa suffered even more and longer incarcerations. We must interpret the Constitution in enhancing the rights and freedoms granted and enshrined rather than in a manner that curtails them. Each case must be decided in its own circumstances touch and context.


21.    From the above, and having called for and perused the trial court record,  the court agrees with the Applicant that the turnaround to call for a pre-bail  report after the court had already decided that the 4 applicants  are entitled to bond is un procedural and irregular. Also, the failure to consider the health status of the 3rd and 4th Applicants especially the one who was visibly ill in court was also irregular.  This ailment was supported by a medical report.

22.    The Applicants had also stated that the 3rd and 4th Applicants were mothers and care givers of small chidren aged 6 and below and so the continued   pre trial detention after the finding that there were no compelling reasons to deny bond was prejudicial and unlawful.

23.    The court has  considered the response by the state.  They basically rehearse the grounds that were raised by the Investigating Officer.  The trial court had already decided that bond would be given and accordingly they are not persuasive.
24.    Accordingly, the court finds that the Revision Application has merit.  It is allowed.  The order suspending OR postponing bond is set aside.  Each of the Accused persons, now Applicants , may be released on a bond of Kenya Shilling 1 Million each. ( Kshs.1,000,000/=) with 1 Kenyan surety plus an additional 1 contact person who is a Kenyan.  The contact person to give the Kenyan identification details and telephone contacts. 

25.    In the alternative each of them may post a cash bail of Ksh.500,000/= with 2 Kenyan contact persons who likewise should give their Kenyan identification details and telephone contacts.

26.     The cash bail sureties to be processed by at Trial Court station.

27.    IT IS SO ORDERED

Dated, signed and delivered in Open Court/online through MS TEAMS,
this 2nd  day of october 2024

HON. LADY JUSTICE WENDY KAGENDO
JUDGE



In the presence of: -
MS BEBORA                           ………………… Court Assistant
MS MAINA AND MS OGEGA ………………… for the Respondent
MR.MAKORI                   ………………………         for the Applicant


HON. LADY JUSTICE WENDY KAGENDO
JUDGE