RULING
1. The notice of Motion application dated 21 st May 2026 seeks the following orders:
i) Spent
ii) That the court orders made by the trial court on 13 th May 2026 cancelling the applicants bond terms be reviewed/set-aside.
iii) That the honourable court does admit the Applicant t bond upon reasonable terms.
iv) This honourable Court does issue such further or other as it may deed fit and just to grant.
2. The application is premised on the grounds that the applicants bond was cancelled on 13 th May 2026 without affording the applicant any prior notice or any opportunity to be heard, in direct violation of Article 50(2) (h) of the Constitution of Kenya. That the affidavit filed by the Investigating in support of bond cancellation was all based on hearsay, and that the complainant did not swear an affidavit in support of the cancellation application.
3. The applicant further aver that the allegations in the bond cancellation affidavit are categorically false and disputed, as the applicant was not in Eldoret at the time the allegations made against him.
4. The applicant submits that he’s an elderly man aged 68 years. And that he suffered bilateral pneumonia, a condition that he contracted while he was incarcerated in prison for a period of three months.
5. Attention of the court has also been drawn to the fact that the accused person herein and the complainant are husband and wife, and had several cases pending before court.
6. n support the application for review/reinstatement of bond, the applicant avers that he is not a flight risk , is elderly and sickly and has extensive immovable property and community ties in Uasin Gishu , and has cooperated with the court process through out.
7. The application is supported by the supporting affidavit of David Kiptoo Muigei, who deposed that upon release on bond on 2 nd May 2025, he has fully complied with the bond terms to the best of his ability. That on 13 th May 2026, he had attended court for the hearing of an application seeking the recusal of the trial magistrate, but instead of giving directions on the application for recusal, the trial magistrate entertained an affidavit sworn by the investigating officer, No. 63294 Corporal Limo, seeking cancellation of his bond terms. The allegations made by the investigating officer were that on 6 th May 2026, he had attended at BT Salon near Safaricom House, Oginga Odinga Street, Eldoret in apparent search of the complaint.
8. The applicant states that the cancellation of his bond was on the spot, and that he was not given an opportunity to respond to the allegations made. The court consequently gave ordered, to have the applicant remanded to Eldoret G.K Prison forthwith.
9. The applicant denies the allegations levelled against him by the investigating officer, and further stated that he was not a right to fair hearing, before the learned magistrate proceeded to make the orders for bond cancellation. That prior to cancellation of his bond terms, he was not served with the affidavit of Corp Limo, an action that amounts to gross violation of his constitutional rights to be heard under Article 50(2) (h) of the Constitution of Kenya 2010.
10. The application s opposed. The investigating officer in his Replying Affidavit stated that the applicant had breached his bond terms, and the complainant had reported at Eldoret Police Station vide Occurrence Book Entry No.64/06/05/2026. Her complaint to the police was that on the material day, she was in town when she saw the applicant walking behind her. That she went inside the Salon, and hid in another room inside the building. That the applicant went into the salon and enquired from one of the salonists about the whereabouts of the complainant, and that the applicant went as far as searching for the complainant inside the washroom, an act that caused and instilled fear to the salon owner and other clients.
11. The investigating officer went on to state that if allowed, the application to reinstate/review the bond terms will not only severely prejudice the ongoing trial but also expose the victim in the ongoing trial to imminent life threatening circumstances. Further that the security of the applicant is also not guaranteed within the community for his conduct has been reported at several police stations vide the O.B numbers outlined at paragraph 19 of the Replying Affidavit. He deposed that there are compelling reasons to justify the cancellation of bail terms and that bail is not an absolute constitutional right.
12. I have considered the application herein and the response thereof. The only issue for determination is whether the applicants have met the threshold for grant of revision orders sought. This courts’ jurisdiction has been summoned pursuant to Article 165(6) and (7) of the Constitution and Sections 362,363 and 364 of the Criminal Procedure Code .
13 .Article 165(6) does provide as follows;
“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”.
14. Article 165 (7) provides that;
“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.”
15 .Section 362 Power of High Court to call for records-
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.
16. Section 363- Subordinate court may call for records of inferior court-
1)A subordinate court of the first class may call for and examine the record of any criminal proceedings of a subordinate court of a lower class than it and established within its local limits of jurisdiction, for the purpose of satisfying itself as to the legality, correctness or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceedings.
2)If a subordinate court acting under subsection (1) considers that a finding, sentence or order of the court of lower class is illegal or improper, or that the proceedings were irregular, it shall forward the record with its remarks thereon to the High Court.3)[ Act No. 17 of 1967 , s. 35.]
17 .Section 364 provides for the Powers of High Court on revision as hereunder;
1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
18. Where a subordinate court acts improperly or erroneously, the high court is clothed with powers to correct such impropriety or error. See prosecutor vs Stephen Lensiko (2018)eKLR where the court highlighted on the principles guiding a court when exercising revisionary powers as follows; where the decision is erroneous; where there is no compliance with the law; where the finding of fact affecting the decision is not based on evidence or it is as a result of misreading or non-reading of evidence on record; where the material evidence on the parties is not considered and; where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of a lesser charge.
19. Similarly, in the case of Joseph Nduvi Mbuvi vs Republic (2019) eKLR, the court held that;
“In my considered view, the object of the revisional jurisdiction of the high court is to enable the high court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still on going, should be proceeded with…”
20 .I am a live of the dictates of Article 49(1)(h) of the Constitution that, bail is a constitutional right to an accused person. However, the same is not an absolute right under Article 25 of the Constitution . See Republic V Joktan Mayende & 3 Others (2012) e KLR.
21. The gist of the revision application herein is the cancellation of the bail terms by the trial court, without giving the applicant a right to a fair hearing
22. I have perused the record of the trial court and find that it is not in dispute that the applicant herein was released on bond. It is also not in doubt that the applicant has been attending court as required. Having examined the record of the lower court, I find that the affidavit of the investigating officer in support for cancellation of bond, was brought to the attention of the accused on 13 th May 2026. The court record indicates that the affidavit was served upon the accused as Advocate for the accused person was not before court on that day.
23. From the proceedings of the court, it appears that the trial magistrate proceeded immediately to hear the application seeking cancellation of bond, and rendered her decision on the same day. Nothing suggests that the applicant was given sufficient time to prepare or consult his advocate in regard to the application before the court.
24. The relevant provisions of the Constitution of Kenya that deal with disclosure are:
i. Article 50 (2) (c) of the Constitution of Kenya: The right to have adequate time and facilities to prepare a defence.
ii. Article 50 (2) (j) of the Constitution of Kenya: The right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence the prosecution intends to rely on.
25.Majanja J in Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others [2013] eKLR held that:
“The right to be provided with material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defense.”
26. Similarly, in Republic v Wilson Chelelgo Cheponin [2019] eKLR, J. E. M. Muriithi emphasised that short delays to recall witnesses, or to adjourn proceedings to allow the defence time for preparation, serve the interests of a fair trial for both the accused and the complainant. The prosecution may continue to call witnesses before closing its case, provided the defence is given sufficient time to prepare.
27. From the above decisions, the court emphasizes on the fact that the accused retains the constitutional right under Article 50(2)(c) and (j) to adequate time and facilities to prepare a defence, and this right must be respected throughout the trial.
28. Though the trial magistrate complied with the procedural aspects, one cannot say that the applicant was accorded adequate time to prepare for the application for cancellation of bond.
29. I find from the foregoing that learned trial magistrate fell in error in failing to ensure that the even though the applicant was served with the affidavit of the investigating officer, the court failed to grant him sufficient time to prepare for his response for his to understand the allegations levelled against him .
30. Based on this reason, I find merit in the application and allow the application.
31. I am alive to the fact that the trial magistrate had an opportunity to and the advantage of considering the contents of the bond pre bail report in arriving at the bond terms granted by the court. The court had also been informed about other pending cases, where court orders have issued. I find the bond terms set by the trial court fair in the circumstances, and find no reason to interfere with the same.
32. The applicant is hereby re-admitted to the bond, on the same terms as set by the court 2nd May 2025. In order to ensure compliance, the applicant shall report to the Investigating Officer, once a month, at times and date to be set by the OCS Eldoret Police Station. To that extent, the application herein is allowed in terms of the directions given herein above.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF JULY, 2026.
MARTHA MUTUKU
JUDGE
In the presence of :-
Mr. Kibet- Court Assistant.
Applicant –present
Advocate for the Applicant- Mr.Odour.
State Counsel-Mr. Thuo.
1. The notice of Motion application dated 21 st May 2026 seeks the following orders:
i) Spent
ii) That the court orders made by the trial court on 13 th May 2026 cancelling the applicants bond terms be reviewed/set-aside.
iii) That the honourable court does admit the Applicant t bond upon reasonable terms.
iv) This honourable Court does issue such further or other as it may deed fit and just to grant.
2. The application is premised on the grounds that the applicants bond was cancelled on 13 th May 2026 without affording the applicant any prior notice or any opportunity to be heard, in direct violation of Article 50(2) (h) of the Constitution of Kenya. That the affidavit filed by the Investigating in support of bond cancellation was all based on hearsay, and that the complainant did not swear an affidavit in support of the cancellation application.
3. The applicant further aver that the allegations in the bond cancellation affidavit are categorically false and disputed, as the applicant was not in Eldoret at the time the allegations made against him.
4. The applicant submits that he’s an elderly man aged 68 years. And that he suffered bilateral pneumonia, a condition that he contracted while he was incarcerated in prison for a period of three months.
5. Attention of the court has also been drawn to the fact that the accused person herein and the complainant are husband and wife, and had several cases pending before court.
6. n support the application for review/reinstatement of bond, the applicant avers that he is not a flight risk , is elderly and sickly and has extensive immovable property and community ties in Uasin Gishu , and has cooperated with the court process through out.
7. The application is supported by the supporting affidavit of David Kiptoo Muigei, who deposed that upon release on bond on 2 nd May 2025, he has fully complied with the bond terms to the best of his ability. That on 13 th May 2026, he had attended court for the hearing of an application seeking the recusal of the trial magistrate, but instead of giving directions on the application for recusal, the trial magistrate entertained an affidavit sworn by the investigating officer, No. 63294 Corporal Limo, seeking cancellation of his bond terms. The allegations made by the investigating officer were that on 6 th May 2026, he had attended at BT Salon near Safaricom House, Oginga Odinga Street, Eldoret in apparent search of the complaint.
8. The applicant states that the cancellation of his bond was on the spot, and that he was not given an opportunity to respond to the allegations made. The court consequently gave ordered, to have the applicant remanded to Eldoret G.K Prison forthwith.
9. The applicant denies the allegations levelled against him by the investigating officer, and further stated that he was not a right to fair hearing, before the learned magistrate proceeded to make the orders for bond cancellation. That prior to cancellation of his bond terms, he was not served with the affidavit of Corp Limo, an action that amounts to gross violation of his constitutional rights to be heard under Article 50(2) (h) of the Constitution of Kenya 2010.
10. The application s opposed. The investigating officer in his Replying Affidavit stated that the applicant had breached his bond terms, and the complainant had reported at Eldoret Police Station vide Occurrence Book Entry No.64/06/05/2026. Her complaint to the police was that on the material day, she was in town when she saw the applicant walking behind her. That she went inside the Salon, and hid in another room inside the building. That the applicant went into the salon and enquired from one of the salonists about the whereabouts of the complainant, and that the applicant went as far as searching for the complainant inside the washroom, an act that caused and instilled fear to the salon owner and other clients.
11. The investigating officer went on to state that if allowed, the application to reinstate/review the bond terms will not only severely prejudice the ongoing trial but also expose the victim in the ongoing trial to imminent life threatening circumstances. Further that the security of the applicant is also not guaranteed within the community for his conduct has been reported at several police stations vide the O.B numbers outlined at paragraph 19 of the Replying Affidavit. He deposed that there are compelling reasons to justify the cancellation of bail terms and that bail is not an absolute constitutional right.
12. I have considered the application herein and the response thereof. The only issue for determination is whether the applicants have met the threshold for grant of revision orders sought. This courts’ jurisdiction has been summoned pursuant to Article 165(6) and (7) of the Constitution and Sections 362,363 and 364 of the Criminal Procedure Code .
13 .Article 165(6) does provide as follows;
“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”.
14. Article 165 (7) provides that;
“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.”
15 .Section 362 Power of High Court to call for records-
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.
16. Section 363- Subordinate court may call for records of inferior court-
1)A subordinate court of the first class may call for and examine the record of any criminal proceedings of a subordinate court of a lower class than it and established within its local limits of jurisdiction, for the purpose of satisfying itself as to the legality, correctness or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceedings.
2)If a subordinate court acting under subsection (1) considers that a finding, sentence or order of the court of lower class is illegal or improper, or that the proceedings were irregular, it shall forward the record with its remarks thereon to the High Court.3)[ Act No. 17 of 1967 , s. 35.]
17 .Section 364 provides for the Powers of High Court on revision as hereunder;
1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c)in proceedings under section 203 or 296(2) of the Panel Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence:
Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.
18. Where a subordinate court acts improperly or erroneously, the high court is clothed with powers to correct such impropriety or error. See prosecutor vs Stephen Lensiko (2018)eKLR where the court highlighted on the principles guiding a court when exercising revisionary powers as follows; where the decision is erroneous; where there is no compliance with the law; where the finding of fact affecting the decision is not based on evidence or it is as a result of misreading or non-reading of evidence on record; where the material evidence on the parties is not considered and; where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of a lesser charge.
19. Similarly, in the case of Joseph Nduvi Mbuvi vs Republic (2019) eKLR, the court held that;
“In my considered view, the object of the revisional jurisdiction of the high court is to enable the high court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still on going, should be proceeded with…”
20 .I am a live of the dictates of Article 49(1)(h) of the Constitution that, bail is a constitutional right to an accused person. However, the same is not an absolute right under Article 25 of the Constitution . See Republic V Joktan Mayende & 3 Others (2012) e KLR.
21. The gist of the revision application herein is the cancellation of the bail terms by the trial court, without giving the applicant a right to a fair hearing
22. I have perused the record of the trial court and find that it is not in dispute that the applicant herein was released on bond. It is also not in doubt that the applicant has been attending court as required. Having examined the record of the lower court, I find that the affidavit of the investigating officer in support for cancellation of bond, was brought to the attention of the accused on 13 th May 2026. The court record indicates that the affidavit was served upon the accused as Advocate for the accused person was not before court on that day.
23. From the proceedings of the court, it appears that the trial magistrate proceeded immediately to hear the application seeking cancellation of bond, and rendered her decision on the same day. Nothing suggests that the applicant was given sufficient time to prepare or consult his advocate in regard to the application before the court.
24. The relevant provisions of the Constitution of Kenya that deal with disclosure are:
i. Article 50 (2) (c) of the Constitution of Kenya: The right to have adequate time and facilities to prepare a defence.
ii. Article 50 (2) (j) of the Constitution of Kenya: The right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence the prosecution intends to rely on.
25.Majanja J in Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others [2013] eKLR held that:
“The right to be provided with material the prosecution wishes to rely on is not a one-off event but is a process that continues throughout the trial period from the time the trial starts when the plea is taken. The reality is that there will be instances where all the information relating to investigation may not all be available at the time of charging the suspect or taking the plea. The disclosure of evidence, both inculpatory and exculpatory, is easily dealt with during the trial as the duty to provide the material is a continuing one and the magistrate is entitled to give such orders and directions as are necessary to effect this right. When the fresh material is provided, the accused is entitled to have the time and opportunity to prepare their defense.”
26. Similarly, in Republic v Wilson Chelelgo Cheponin [2019] eKLR, J. E. M. Muriithi emphasised that short delays to recall witnesses, or to adjourn proceedings to allow the defence time for preparation, serve the interests of a fair trial for both the accused and the complainant. The prosecution may continue to call witnesses before closing its case, provided the defence is given sufficient time to prepare.
27. From the above decisions, the court emphasizes on the fact that the accused retains the constitutional right under Article 50(2)(c) and (j) to adequate time and facilities to prepare a defence, and this right must be respected throughout the trial.
28. Though the trial magistrate complied with the procedural aspects, one cannot say that the applicant was accorded adequate time to prepare for the application for cancellation of bond.
29. I find from the foregoing that learned trial magistrate fell in error in failing to ensure that the even though the applicant was served with the affidavit of the investigating officer, the court failed to grant him sufficient time to prepare for his response for his to understand the allegations levelled against him .
30. Based on this reason, I find merit in the application and allow the application.
31. I am alive to the fact that the trial magistrate had an opportunity to and the advantage of considering the contents of the bond pre bail report in arriving at the bond terms granted by the court. The court had also been informed about other pending cases, where court orders have issued. I find the bond terms set by the trial court fair in the circumstances, and find no reason to interfere with the same.
32. The applicant is hereby re-admitted to the bond, on the same terms as set by the court 2nd May 2025. In order to ensure compliance, the applicant shall report to the Investigating Officer, once a month, at times and date to be set by the OCS Eldoret Police Station. To that extent, the application herein is allowed in terms of the directions given herein above.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF JULY, 2026.
MARTHA MUTUKU
JUDGE
In the presence of :-
Mr. Kibet- Court Assistant.
Applicant –present
Advocate for the Applicant- Mr.Odour.
State Counsel-Mr. Thuo.