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JudgmentDANSON NYAGA NGARI VS The Republic6 min read

DANSON NYAGA NGARI VS The Republic

High Court at Embu High Court · · Lucy Njuguna


  1. For determination is the notice of motion dated 12th November 2024 through which the applicant seeks the following orders:
    1. Spent;
    2. That the honourable court do call for and examine the record in Siakago MCCR E730 of 2024 and the ruling of R.N. Kahara delivered on 31st October 2024 denying the applicant bond pending hearing of the case;
    3. That this honourable court reverse the said order denying the applicant bond and do order the release of the applicant on bond terms as the court deems fit pending hearing and determination of the case.
  2. The applicant was charged with attempted murder contrary to section 220(a) of the Penal Code. He applied to be released on bond but the respondent opposed this application citing grounds some of which are that the applicant served in the dreaded flying squad when he was in the police service. That he has been using his access to firearms to bully and threaten people in the village.
  3. He stated that he filed a response to the respondent’s allegations but his explanation was not considered by the trial court in its ruling. He stated that the fact that he is a retired police officer is not enough reason to deny him bail. That the ruling of the trial court is discriminatory and it condemns him yet the same is based on allegations that are baseless and unsubstantiated. He urged the court to revise the findings of the trial court.
  4. The respondent opposed this application through a replying affidavit in which it deposed that the ground for opposing the applicant’s application for bond was that he is likely to interfere with witnesses in the case. That the trial court considered the pleadings in the matter and found that the prosecution had provided enough grounds to deny bond. That besides, granting of bail/bond is discretionary and the trial court correctly exercised its discretion within the applicable principles. That the applicant has not highlighted any illegality that was occasioned by the trial court to warrant revision of the ruling under this court’s supervisory jurisdiction.
  5. The court directed the parties to file their written submissions but only the applicant complied.
  6. It was the applicant’s submission that the trial court was wrong in agreeing with the respondent that the applicant’s 40-year long service with the National Police Service gave him the right to intimidate the victim. That there is no crime in legally possessing a firearm which the applicant does not use to intimidate the witnesses. He relied on Article 49(1) of the Constitution, section 123A of the Criminal Procedure Code and the Judiciary Bail and Bond Guidelines 2015 and urged that he is to be presumed innocent until proven guilty, thus he has a right to be released on bail/bond terms.
  7. He argued that the respondent’s allegations are not captured in an OB to prove that he is a danger to the witnesses in the case. Further reliance was placed on the cases of Republic v. Fredrick Omwonya Onyango & Another (2016) eKLR, Republic v. Danson Ngunya & Another (2010) eKLR, Job Kenyanya Musoni v. Republic (2012) eKLR, R. v. Dwight Sagaray & 4 Others (2013) eKLR, DCIO West Pokot v. Fred Komo Nguru (2021) eKLR and Douglas Okwii Marcus v. Director of Public Prosecutions (2021) eKLR. He argued that there is no perceived threat to the witnesses and he urged the court to release him on reasonable bond terms.
  8. The issue for determination is whether the application has merit.
  9. The revisionary power of the High Court is drawn from Article 167(6)&(7) of the Constitution which provides:

“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

  1. Section 362 of the Criminal Procedure Code provided as follows on the High Court’s supervisory jurisdiction:

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

  1. Through the impugned ruling, the trial magistrate acknowledged that the applicant has the right to be released on bond terms but his right is not without limits. Bond may be denied where there are compelling reasons. She relied on caselaw and the factors to be considered before the right to bond can be fettered. She also considered the circumstances of the case which are that the applicant was accused of shooting the victim with his licensed firearm at a time when he had just retired from the police service after a 40-year stint. The trial court further assessed the medical reports produced by the applicant in support of his argument that he should be released on bond citing medical grounds. The arguments and supporting documents did not persuade the court to grant bond terms. In the last paragraph of her ruling, the trial magistrate found that the issue of the applicant’s application for bond is not ripe before the court until the evidence of the complainant is secured, since he is a crucial witness.
  2. There is no doubt that Article 49(1)(h) of the Constitution provides for the right to bail pending trial as follows:

“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

  1. The grant of bail/ bond by a court is discretionary. The court may determine whether there are compelling reasons for the accused person not to be released on bail/bond from the circumstances of the case. In the case of Republic v. Joktan Mayende & 3 others [2012] KEHC 5551 (KLR) the court stated as follows:

“….. The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.”

  1. The Judiciary Bail and Bond Policy Guidelines provide guidance on factors the court can consider in assessing whether or not to grant bail. These may also assist in determining whether there exists compelling reasons not to grant bail/bond. They are, inter alia;
    1. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
    2. The strength of the prosecution case.
    3. The character and antecedents of the accused person.
    4. The failure of the accused person to observe bail or bond terms.
    5. The likelihood of interfering with witnesses.
    6. The need to protect the victim or victims of the crime.
    7. The relationship between the accused person and the potential witnesses.
    8. The best interest of child offenders.
    9. The accused person is a flight risk.
    10. Whether the accused person is gainfully employed.
    11. Public order, peace and security.
    12. Protection of the accused persons.
  2. The applicant was charged with the offence of attempted murder contrary to section 220(a) of the Penal Code. The prosecution told the court that it has reasons to believe that the applicant, if released on bond, will interfere with witnesses, given how the alleged incident occurred. Before trial, the applicant is deemed innocent until proven guilty, meaning that he was not denied bond as the perpetrator of the crime; far from it! In this case, the trial court was persuaded that the applicant could not be released on bond because he is likely to interfere with witnesses, particularly the complainant as a key prosecution witness. From the wording of the ruling, the trial court simply deferred determining the issue of bond until the testimony of the complainant is secured.
  3. That being said, I find that the application herein lacks merit and it is hereby dismissed. However, I hereby order that the respondent does prosecute the matter expeditiously in the interest of justice.
  4. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    DANSON NYAGA NGARI VS The Republic DANSON NYAGA NGARI VS The Republic