BEATRICE ATIENO MBOYA ………………….………....……. APPLICANT
VERSUS
REPUBLIC …………..……………………………….…………. RESPONDENT
( Being an appeal from the Ruling of Hon. C.N. Njalale, Principal Magistrate, delivered on 1 st July 2026 at the Chief Magistrate Court at Kitale in Criminal Case No. E3603 of 2022 )
RULING
Introduction
1. The Applicant herein was arraigned in court on the 20 th of December 2022 and charged with the offence of Obtaining by False Presences contrary to section 313 of the Penal Code. The Applicant took plea on 22 nd December 2022 and the Applicant denied the charges. The court granted the Applicant bond terms of Kshs. 200,000.00.
2. From the proceedings before the trial court, the Applicant attended court sessions intermittently, some of the times being away on the basis of being unwell. The hearing partly proceeded with the Complainant on 5 th September 2024 before the witness was stood down. From the 20 th November 2024, the Applicant did not attend court on the basis that she was unwell. Subsequently, a warrant of arrest was issued by the trial court 12 th March, 2025. The Applicant was eventually apprehended and presented to court on the 23 rd June 2026 wherein the trial court cancelled the Applicants bond and remanded the accused in custody.
3. Upon the application by the prosecution and the Applicants surety, the Applicants bond was cancelled and she was remanded into custody. The trial court in its reasoned ruling delivered on the 1 st July, 2026 declined the offer by the Applicant to have fresh bond terms and two sureties to replace the surety who had applied to withdraw on the basis that the Applicant had become a flight risk.
4. Dissatisfied by the decision of the trial court, the Applicant has now appealed against the ruling of the trial court seeking for this court to overturn the same.
Analysis and Determination .
5. Article 49 (1) (h) of the Constitution guarantees a party to committal to bail unless there are compelling reasons. Under the Judiciary Bail and Bond Policy, an accused person is also guaranteed bail, unless there are compelling reasons to deny the accused bail. Article 49 (1) (h) of the Constitution provides that:
“(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released” .
6. In the ruling before the trial court, the court relied on the decision in Michael Juma Oyamo & Another vs Republic (2019) eKLR, Republic vs Joseph Tirop & Another (2017) eKLR, Patius Gichobi Njagi & 2 Others vs Republic (2013) eKLR, Republic vs Diana Suleiman Said & Another (2014) eKLR, John Otieno vs Republic and Alfred Gichana Ogwankwa vs Republic Machakos HCCR No. 10 0f 2015 (2015) eKLR . The cited cases all related with circumstances when the courts have declined to grant bail to accused persons either at the point of plea or having been grated bond or bail, had violated the same.
7. Section 123A of the Criminal Procedure Code , that provides guidelines on the grant or denial of bond, provides as follows:
“ Exception to right to bail
(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
(a) the nature or seriousness of the offence;
(b) the character, antecedents, associations and community ties of the accused person;
(c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
(d) the strength of the evidence of his having committed the offence;
(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b) should be kept in custody for his own protection ”.
8. The court is particularly cognisant of the provisions of section 123A, (1) (c), of the CPC. The reasons given by the Applicant on her failure are convincing. Granted that the previous Advocate had mistakenly diarized the matter for a different date, and that she was unwell and seen by a doctor on 3 rd April, 2025, what efforts did she make to resume her court attendance after the 3 rd April, 2025? The Applicant had a duty to engage her Advocate after her last court attendance to find out the dates the court had given. There is no evidence to that effect.
9. In Republic v Fredrick Ole Leliman & 4 others [2016] KEHC 992 (KLR ), the court approved the guidance in the Bail and Bond Policy, and approved the submissions by Counsel and cited clause 4.9 by stating:
“ In terms of substance, the primary factor considered by the Courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the Courts face since the promulgation of the Constitution of 2010 is determining the existence of Compelling reasons for denying an accused person bail, particularly in Serious offences. ... the determination of whether there are compelling reasons that can justify the denial of bail should be made by evaluating whether or not the accused person will attend his or her trial....”
10. The court in Republic v Ahmed Mohammed Omar & 6 Others |2010 eKLR , cited with approval the determination in John Zenus Ungapake Tembo & 2 Others v The Director of Public Prosecutions, M.S.C.A. CR. Appeal No. 16 of 1995 , thus:
"... where a person has been charged with an offence, the wheels of justice are set in motion and the accused person is expected to be prosecuted for the offence, and the law requires that the accused shall be available to stand his/her trial until the CASE is completed .”
11. The Applicant made two offers before the trial court. First, to engage the complainant in an out of court settlement and also to engage two sureties on her behalf. On the first issue, I note from the proceedings that the Applicant has made that offer since the date of her plea on 22 nd of December 2022 but there is no tangible evidence of any efforts towards that outcome.
12. On the second issue, the issue, as the trial court correctly noted in its ruling, where the accused person has not been faithful to the previous bond terms. The number of sureties per se will thus not be a panacea to the previous failures by the Applicant to attend court. The primary consideration, from the Applicants conduct, is her adherence to the court attendances as scheduled by the trial court.
13. The Applicant and the Advocates who have represented the Applicant have been indolent and not keen to both resolve the matter or have the matter concluded expeditiously. They have not come to court with clean hands.
14. I would have been intent not to allow the application by the Applicant to overturn the ruling of the trial court. I will however allow the application on the following stringent terms, as will be perfected by the trial court, hoping the two weeks in custody have alerted the Applicant to her responsibility in regard to adherence to court terms on bond/bail:
i. The trial court to set new bond terms for the Applicant, in view of her previous conduct, including the receipt and consideration of a pre bail report, if need be.
ii. As directed in the ruling of 1 st July 2026, the parties to proceed and set down the hearing and conclusion of the matter expeditiously, and in any case not more than 6 months from the date of the ruling of 1 st July, 2026 .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 14 th Day of July 2026.
HCCR MISC NO. E105 OF 2026 BEATRICE AKELO MBOYA VS REPUBLIC RULING Pg. 5
VERSUS
REPUBLIC …………..……………………………….…………. RESPONDENT
( Being an appeal from the Ruling of Hon. C.N. Njalale, Principal Magistrate, delivered on 1 st July 2026 at the Chief Magistrate Court at Kitale in Criminal Case No. E3603 of 2022 )
RULING
Introduction
1. The Applicant herein was arraigned in court on the 20 th of December 2022 and charged with the offence of Obtaining by False Presences contrary to section 313 of the Penal Code. The Applicant took plea on 22 nd December 2022 and the Applicant denied the charges. The court granted the Applicant bond terms of Kshs. 200,000.00.
2. From the proceedings before the trial court, the Applicant attended court sessions intermittently, some of the times being away on the basis of being unwell. The hearing partly proceeded with the Complainant on 5 th September 2024 before the witness was stood down. From the 20 th November 2024, the Applicant did not attend court on the basis that she was unwell. Subsequently, a warrant of arrest was issued by the trial court 12 th March, 2025. The Applicant was eventually apprehended and presented to court on the 23 rd June 2026 wherein the trial court cancelled the Applicants bond and remanded the accused in custody.
3. Upon the application by the prosecution and the Applicants surety, the Applicants bond was cancelled and she was remanded into custody. The trial court in its reasoned ruling delivered on the 1 st July, 2026 declined the offer by the Applicant to have fresh bond terms and two sureties to replace the surety who had applied to withdraw on the basis that the Applicant had become a flight risk.
4. Dissatisfied by the decision of the trial court, the Applicant has now appealed against the ruling of the trial court seeking for this court to overturn the same.
Analysis and Determination .
5. Article 49 (1) (h) of the Constitution guarantees a party to committal to bail unless there are compelling reasons. Under the Judiciary Bail and Bond Policy, an accused person is also guaranteed bail, unless there are compelling reasons to deny the accused bail. Article 49 (1) (h) of the Constitution provides that:
“(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released” .
6. In the ruling before the trial court, the court relied on the decision in Michael Juma Oyamo & Another vs Republic (2019) eKLR, Republic vs Joseph Tirop & Another (2017) eKLR, Patius Gichobi Njagi & 2 Others vs Republic (2013) eKLR, Republic vs Diana Suleiman Said & Another (2014) eKLR, John Otieno vs Republic and Alfred Gichana Ogwankwa vs Republic Machakos HCCR No. 10 0f 2015 (2015) eKLR . The cited cases all related with circumstances when the courts have declined to grant bail to accused persons either at the point of plea or having been grated bond or bail, had violated the same.
7. Section 123A of the Criminal Procedure Code , that provides guidelines on the grant or denial of bond, provides as follows:
“ Exception to right to bail
(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
(a) the nature or seriousness of the offence;
(b) the character, antecedents, associations and community ties of the accused person;
(c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
(d) the strength of the evidence of his having committed the offence;
(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b) should be kept in custody for his own protection ”.
8. The court is particularly cognisant of the provisions of section 123A, (1) (c), of the CPC. The reasons given by the Applicant on her failure are convincing. Granted that the previous Advocate had mistakenly diarized the matter for a different date, and that she was unwell and seen by a doctor on 3 rd April, 2025, what efforts did she make to resume her court attendance after the 3 rd April, 2025? The Applicant had a duty to engage her Advocate after her last court attendance to find out the dates the court had given. There is no evidence to that effect.
9. In Republic v Fredrick Ole Leliman & 4 others [2016] KEHC 992 (KLR ), the court approved the guidance in the Bail and Bond Policy, and approved the submissions by Counsel and cited clause 4.9 by stating:
“ In terms of substance, the primary factor considered by the Courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the Courts face since the promulgation of the Constitution of 2010 is determining the existence of Compelling reasons for denying an accused person bail, particularly in Serious offences. ... the determination of whether there are compelling reasons that can justify the denial of bail should be made by evaluating whether or not the accused person will attend his or her trial....”
10. The court in Republic v Ahmed Mohammed Omar & 6 Others |2010 eKLR , cited with approval the determination in John Zenus Ungapake Tembo & 2 Others v The Director of Public Prosecutions, M.S.C.A. CR. Appeal No. 16 of 1995 , thus:
"... where a person has been charged with an offence, the wheels of justice are set in motion and the accused person is expected to be prosecuted for the offence, and the law requires that the accused shall be available to stand his/her trial until the CASE is completed .”
11. The Applicant made two offers before the trial court. First, to engage the complainant in an out of court settlement and also to engage two sureties on her behalf. On the first issue, I note from the proceedings that the Applicant has made that offer since the date of her plea on 22 nd of December 2022 but there is no tangible evidence of any efforts towards that outcome.
12. On the second issue, the issue, as the trial court correctly noted in its ruling, where the accused person has not been faithful to the previous bond terms. The number of sureties per se will thus not be a panacea to the previous failures by the Applicant to attend court. The primary consideration, from the Applicants conduct, is her adherence to the court attendances as scheduled by the trial court.
13. The Applicant and the Advocates who have represented the Applicant have been indolent and not keen to both resolve the matter or have the matter concluded expeditiously. They have not come to court with clean hands.
14. I would have been intent not to allow the application by the Applicant to overturn the ruling of the trial court. I will however allow the application on the following stringent terms, as will be perfected by the trial court, hoping the two weeks in custody have alerted the Applicant to her responsibility in regard to adherence to court terms on bond/bail:
i. The trial court to set new bond terms for the Applicant, in view of her previous conduct, including the receipt and consideration of a pre bail report, if need be.
ii. As directed in the ruling of 1 st July 2026, the parties to proceed and set down the hearing and conclusion of the matter expeditiously, and in any case not more than 6 months from the date of the ruling of 1 st July, 2026 .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 14 th Day of July 2026.
HCCR MISC NO. E105 OF 2026 BEATRICE AKELO MBOYA VS REPUBLIC RULING Pg. 5