ezekiel owuor VS ODPP ezekiel owuor VS ODPP

The applicant by way of a Notice of Motion dated 31^st December 2024 moved to this court seeking the following orders:-
The Application be certified as urgent and service thereof be dispensed with in the first instance.
That pending hearing and determination of this Application, this Honourable Court be and is hereby pleased to order the release of the Applicant on reasonable cash-bail.
That pending hearing and determination of the Application for revision filed herewith this Honourable Court be and is hereby pleased to order the release of the Applicant on reasonable cash- bail.
The costs of the application be provided for.
In support of the Notice of Motion the applicant has raised the following grounds:-
That the Honourable Magistrates Court in Makadara Criminal Case No. 6466 of 2024: R v Ezekiel Owino Owuor has proceeded to charge the Applicant and conduct proceedings founded on a defective charge sheet, which does not sufficiently disclose the particulars of the offense and which is further at variance with records so far supplied to the applicant.
That the charges in Makadara Criminal Case No. 6466 of 2024: R v Ezekiel Owino Owuor are baseless, founded on conjecture and mere suspicions that have not been fully investigated and are as such built on conjecture as evidenced by failure by prosecution to furnish the defense with evidentiary material relied upon.
That the proceedings and bail/ bond terms set by the Honourable magistrate are inordinately high, are tantamount to denial of bail in violation of the accused persons rights under Article 49 (1) h of the Constitution.
That the orders are riddled with lack of empathy for the plight of the accused person, his newly delivered wife, a newborn child, only 4 days old at the time of swearing this affidavit, and another minor, 5 years old, all of whom are dependent on the Applicant and who are now exposed to physical and psychological strain due to the continued unreasonable incarceration of the Applicant due to the outrageously high bail/ bond conditions set by the Honourable Magistrate.
That even after these circumstances have been brought to the attention of the Honourable magistrate she has persisted in detaining the Applicant on such unreasonable bond terms in utter disregard to the humanitarian situation placed before her.
That the present circumstances of the accused and his dependents namely, a wife, a minor and a newborn who are in dire need of the Applicants attention, care and protection demand that the Applicant be released on most reasonable terms as to cash- bail.
That whereas processing of bond is not a one day affair, the amount of Kenya Shillings Seven Million(7 Million) demanded by the Honourable Magistrate for cash- bail is unconscionable and unreasonable that it is as good as denial of bail.
Further the application is supported by the affidavit of one Ezekiel Owino Owuor sworn on 3^rd December 2024.
The thrust of the applicant’s application is that the learned Honorable magistrate imposed unconscionable bail terms thereby rendering it impossible for the applicant to meet the terms.
According to the applicant, the condition requiring him to deposit the sum of Seven Million(7 Million) Kenya Shillings is unreasonable and amounts to a denial of bail.
The applicant further contends that even though the circumstances of the offence as well as his personal circumstances were explained to the court, the court has continued to detain him in prison custody by reason of imposing unreasonable terms.
The applicant has further urged the court to consider reducing the bail terms in order to enable him meet the conditions the prosecution through Mr. Chebii on the 3^rd January 2025 indicated to the court that they had not filed a response to the application and that they were seeking time to file a reply as well as file submissions to enable this court determine the application.
The court allowed the parties to put in their submissions by close of business on 10^th January 2025.
At the time of writing this ruling I was not able to find any submissions by the respondent for a response to the application.
This court shall therefore proceed to determine the application on the basis of the material provided by the applicant.
The applicant is charged to the offence of stealing by servant contrary to Section 281 of the Penal Code and it is in the particulars of the charge it is alleged that he stole pharmaceutical products worth Kshs. 18, 215, 495.
The affidavit of the applicant in support of the application clearly indicates that he was employed at the Getrude Children’s Hospital during the period he is alleged to have committed the offence and that he was arrested at the instance of the CEO of the said hospital.
Upon being charged the applicant denied the charges and was granted a bond of Kenya Shillings Seven Million( 7 Million) without the option of a cash bail. It is against this ruling and order that the applicant has approached this court to review the same and determine its propriety and correctness.
The applicant maintains that his family is unable to meet the bond terms and that the terms have exposed him to unwelcome maneuvers by unnamed individuals seeking to assist him to have the bail terms reviewed by the court corruptly. The applicant further states that given his circumstances his hope lies in this court reviewing the bail terms so as to enable him secure his freedom as he faces his trial.
Article 49 (1) (h) of the Constitution of Kenya requires the persons charged with crime be released on bail unless there are compelling reasons to deny the same. It is clear that the magistrate in this case did not find any compelling reason s to deny bail and therefore proceeded to grant a bond of Seven Million Kenyan Shillings (7 Million).
The High Court in exercising its power of division under Section 362 and 364 of the Criminal Procedure Code is enjoined to consider the propriety, correctness, regularity and legality of the impugned order and where the court is satisfied that there are grounds to interfere with the decision it may do so in the interest of justice.
The purpose of bail is to ensure that once an accused person is released on bail he returns to court to face trial as and when required. The terms of bail should never be set at an astronomical figure that puts it beyond the accused’s ability to meet the terms. In particular, in setting terms of bail a court must remain mindful of the gravity of the offence and the circumstances of the accused so that the terms set out by the court are not excessive nor punitive.
It ought to be remembered that the right to bail promotes the right to liberty to persons charged with offences and until one is convicted, he or she is presumed to be innocent.
It follows therefore that the courts must remain alive to the fact of an accused person’s presumed innocence and their right to continue enjoying the right to liberty without limitation.
Although the court in setting bail terms, exercises judicial discretion, that discretion must be judiciously exercised. There should never be room for caprice in the manner in which a court sets bail terms in a particular case. In Mbogo Vs. Shah [1968] 93 the court held that the High Court may interfere with the exercise of judicial discretion where it appears to the court that in the making of the decision under review the court acted on the wrong principles of law, took into account irrelevant considerations, or failed to take into account relevant considerations therefore arriving at the wrong decision in law.
In Kulo v Republic (Miscellaneous Criminal Application E025 of 2023) [2023] KEHC 18553 (KLR) (12 June 2023) (Ruling) the court had this to say;

‘In considering whether to review a trial court’s decision on bail in terms of section 123 (3) of the Criminal Procedure Code, the Court must be satisfied that the decision of the trial court is plainly wrong or that the trial court misdirected itself in failing to take into account a material factor or taking into account an immaterial factor which has resulted in a miscarriage of justice. (See Mbogo v Shah (1968) EA 93).
6.
The right to reasonable bail and bond terms is underpinned in the Judiciary’s Bail and Bond Policy Guidelines as follows:
“
Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.”

The offence which the applicant discharged though serious, remains bailable. The reasonability of the terms imposed by the trial court is to be determined based on an analysis of the factual circumstances obtained before the commission of the offence, the value of the property alleged to have been stolen as well as the potential sentence that the trial court may eventually impose should the applicant be convicted.
The applicant an employee of the complainant institution thus the trial court should have addressed itself to the immediate consequence of incarceration of the applicant prior to the hearing of his case. No doubt his continued stay in custody has definitely affected his ability to return to work and indeed as stated by the applicant he has been rendered unable to respond to a notice to show cause that was issued against him by the employer thus putting his job in jeopardy while he still enjoys the presumption of innocence.
Further, the amount in issue is not so colossal as to amount to an incentive to take flight from the jurisdiction of the court. Indeed, if the court had considered that to be a factor in imposing the Kenya Shilling Seven Million (7 Million) condition it could arguably be said that the trial court is already biased against the accused person without the benefit of hearing any evidence incriminating the accused.
In Cyril Kipruto Serem v Republic [2020] eKLR, the court held :-
“The amount of bail or bond is not supposed to be an approximation of the value of the subject matter of the criminal charge. It does not follow that the higher the value of the property subject of the trial the higher the bail bond terms. It is with respect faulty reasoning because, were it so, those poor offenders on charges, for example, of destruction or attempted fraudulent obtaining, of property of high value would never secure hefty bail and bond terms imposed. Terms of bond are not meant to punish the accused for any perceived guilt for the charges levelled against him. Nor are the terms meant to ensure he is detained awaiting trial to avoid his escape or to ensure punishment. Terms of bail or bond should be tailored to secure and ensure the attendance in court of the accused for purpose of his trial. If the case meets the criteria for grant of bail in that there are no compelling reasons to deny bail, then the conditions for bail must be such as the accused in the particular case is able to meet. So that grant of bail is not a backdoor denial of liberty contrary to, and in mockery of, Article 49 (1) (h) of the Constitution. The accused is innocent until proved guilty and he is entitled to the Article 25 fair trial protections afforded an accused under the Constitution.”
It is the considered view of this court that to impose a Kenya Shillings Seven Million (7 Million) bond term against a person of the cadre of the applicant was an injudicious act on the part of the court. It simply meant that the applicant would remain in custody throughout the trial.
The bail terms imposed are excessive and punitive in the circumstances. It follows therefore, that the order requiring the applicant to deposit a bond of Kenya Shillings Seven Million (7 Million) is hereby reviewed and substituted therefore with an order that the applicant may be released on a bond of Kenya Shillings One Million (1,000,000) plus one surety of similar amount or in the alternative be released on a cash bail of Kenyan Shillings Five Hundred Thousand (500,000).
It is so ordered.