REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HC MISC. CRIMINAL APPLICATION NO. E030 OF 2024
(Coram: Andayi W. F., J.)
H. H. J..............................……………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………RESPONDENT
R U L I N G
1. The application herein by way of a chamber summons dated 24 th July 2026 is for this court to exercise its powers of revision under Article 165(6) and (7) of the Constitution as read with section 362 to 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) to call for the record in Kwale Magistrates Court Criminal Case No. E237 of 2026 Republic v. H. H. J. for the court to satisfy itself on the correctness, legality, propriety and regularity of the proceedings. In particular, it is prayed that this court should revise the trial magistrate’s order admitting the applicant to a bond of KShs 50,000/= with one surety of a like sum without an alternative of cash bail and to substitute the same with an order admitting the applicant to a cash bail of KShs 20,000/= or bond of KShs 50,000/= with an alternative cash bail of KShs 20,000/= or such other reasonable terms as this court may deem fit to grant.
2. The application is based on grounds that:
a. the applicant is a minor.
b. The applicant enjoys the constitutional right to bail under article 49(1)(h) of the Constitution of Kenya.
c. The best interests of the minor call for immediate intervention.
d. Continued incarceration has interrupted the applicant’s education.
e. The bond terms set by the trial court are excessive and operate to deny the applicant bail.
f. The trial court failed to exercise its discretion properly considering the facts before it.
g. The applicant’s family has demonstrated inability to secure a surety but can raise reasonable cash bail.
3. The Court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR) ) but, given the centrality of the right to a fair hearing enshrined in article 50 of the Constitution this court gave the parties the opportunity to make submissions. Learned counsel for the applicant has filed written submissions while learned counsel for the respondent made oral submissions.
4. Learned counsel for the applicant has submitted on the court’s supervisory jurisdiction under article 165(6) and (7) of the Constitution, and the court’s supervisory and revisionary powers under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. He has made submissions on the applicant’s constitutional right to be released on bond pending trial under Article 49(1)(h), right to be presumed innocent until the contrary is proved under Article 50(2)(a) and the best interests of the child under article 53(2) of the constitution and section 8 of the Children Act (Cap. 141) Laws of Kenya for the provision that every court dealing with children to prioritize the child's best interests. Learned counsel submits that the continued detention of the applicant has disrupted his education and exposed him to the harmful effects associated with prolonged incarceration of children. Further that the Supreme Court has repeatedly affirmed that whenever children's rights are implicated, courts must adopt an interpretation that best promotes the child's welfare and constitutional rights. Learned counsel submits that the family is ready to comply immediately with any reasonable cash bail directed by this court. He submits that the terms of bond for the applicant set by the trial court amount to a denial of bond as they are excessive and he is unable to afford them and that is why he is still in custody to-date despite his presumption of innocence. Learned counsel has cited the case of Jivraj Shah v Republic [1986] KECA 36 (KLR) for the holding that that bail terms should not be excessive or oppressive and should not amount to a denial of the constitutional right to bail. Although that position is correct, I have not found it as the holding in the cited case which dealt with bond pending appeal and not bond at the trial stage as the case herein. However, I agree with the submission that as held in the case of Republic v Danson Mgunya & Another [2010] KEHC 4116 (KLR) that an accused must be released on bail or bail on reasonable conditions where there are no compelling reasons not to be released. It is true that the primary purpose of bond is to secure the attendance of an accused person at trial and not to punish him by way of pre-trial detention through high bond terms.
5. Learned counsel submits that the trial court failed to exercise its discretion correctly while setting the bond terms by failing to consider a) the applicant's age; b) the constitutional principle of the best interests of the child; c) the family's demonstrated inability to secure a surety; d) the availability of cash bail as a less restrictive alternative; e) the prolonged incarceration of a child solely because of poverty.
6. The learned counsel for the respondent Ms Vallerie Ong’eti made oral submissions opposing the application. She submits that she has spoken to her colleague handling the matter at the lower court and feels that the bond terms as set are reasonable. Further that an application for review ought to have been made before the trial court.
7. I have considered the application, the grounds in support thereof and the submissions by learned counsels. The issue for determination is whether or not this court should exercise the revisionary powers with regard to the bond terms set by the trial court for the subject.
8. Article 165(6) and (7) of the constitution under which this application is brought provides as follows:
(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.
9. In furtherance of the constitutional edict, section 362 CPC enables the High Court to:
“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 such subordinate court.”
10. Section 364 CPC further provides for the powers of the High Court on revision thus:
(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) …
11. The applicant is charged in Kwale Magistrates Court Criminal Case No. E237 of 2026 on a charge of robbery with violence contrary to section 295 as read with section 266(2) (sic) of the Penal Code (Cap. 63) Laws of Kenya that on 8 th May 2026 at Kona Musa are in Diani location, Msambweni Sub-County within Kwale County within Coast Region while armed with dangerous weapons namely panga robbed a mobile phone make Samsung A07 black in colour and immediately after the time of such robbery threatened to use actual violence to the said Mwanahawa Wanjala.
12. The first issue to point out is that the trial court should read through the charge sheet and be satisfied that it conforms to the provisions of the law both in the charging section and the particulars section.
13. The trial court record shows that the applicant took plea on 15 th June 2026 after a pro bono advocate Mr. Rono had been appointed to appear for him. The trial court then set the bond terms at KShs 50,000/= with one surety of a like sum. Since that time, the case has come up for mention on two occasions, 29 th June 2026 and 20 th July 2026. The applicant has remained in custody an indication that he is yet to raise the bod terms set by the court.
14. I wish to immediately point out that the trial court should when fixing mention dates take into account the proviso to section 205 of the CPC that when an accused person has been committed to prison, adjournment of the case shall not be for more than fifteen clear days. I believe it is this provision of the law that has led to the good practice of trial courts ensuring that mentions of cases for persons detained in custody pending trial is routinely done after every 14 days. It is a statutory requirement and should be complied with. In this digital age, it is much easier now to conduct mentions by way of the virtual court where accused persons do not have to be physically transported to attend at the court house.
15. Back to the application herein, I note that on the two occasions that the case has come up for mention before the trial court, there was no application made for review of bond terms to an alternative of cash bail. The present application was filed on 24 th July 2026, shortly after the last mention before the trial court on 20 th July 2026. Therefore, the assertion in the supporting affidavit sworn on 24 th July 2026 by Mwanamkuu Hassan Jiro, the father of the applicant and submissions by learned counsel, first that the matter has been mentioned on three separate occasions and second that the prosecution (note: not the defence) requested the court to consider granting cash bail but the court declined, are not borne out of the court proceedings.
16. There is no gainsaying that constitutional and statutory provisions underpin an accused person’s right to be released on bail or bond. Article 49 1(h) of the Constitution guarantees an accused person the right to be released on bail unless there are compelling reasons for bail to be denied. These compelling reasons have to be provided by the State. Article 50(2) of the Constitution on the other hand provides for the rights of an accused person to a fair hearing whose components are inter alia the right to be presumed innocent until proven guilty.
17. In the present case, the applicant was granted bond by the plea court. However, he has remained in custody to-date. That makes it apparent that he is unable to raise the bond terms fixed by the court. However, as pointed out above the applicant’s plea herein that the trial court has declined to grant his request for review of the bond and bail terms without offering any reason whatsoever is not correct.
18. All the same, this court is alive to the fact that the applicant herein who is the subject of the proceedings before the magistrate’s court is a child. I have seen s copy of his certificate of birth which was produced before the trial court and it shows that he was borne on 18 th March 2009. He is therefore just about fifteen years old. This calls in the application of article 53 of the C onstitution with respect to the rights of a child. The relevant provisions of the article are as follows:
Article 53(1)(f):
"Every child has the right—
(f) not to be detained, except as a measure of last resort, and when detained, to be held—
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child’s sex and age.
Article 53(2) :
"A child’s best interests are of paramount importance in every matter concerning the child."
19. As submitted by learned counsel for the applicant, the Supreme Court has had occasion to consider the meaning of the provision “best interests of the child” in various decisions. For instance in the case of CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) the Supreme Court stated that:
“So, what does “the best interest” of the child mean, and what is its rationale and scope? Since the best interest of a child will vary from case to case depending on the situation, its determination and what constitutes it will depend on the unique circumstances of each case as we recently explained in MAK v RMAA & 4 others, SC Petition No 2 (E003) of 2022; [2023] KESC 21 (KLR). We said that;
“The concept of the child’s best interest is flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs...
20. In relation to criminal proceedings, the Supreme Court went on to state that:
“Based on this recognition, that children in conflict with the law facing criminal charges are vulnerable due to their age and level of maturity, the trial process should not itself expose them further to avoidable intimidation, humiliation or distress. That explains why special courts have been established and special procedures adopted for the trial of children. Those procedures place restrictions on who can attend court proceedings involving a child and permit the trial court to hold sittings in camera at which only the presiding judicial officer, officers of the court and a children’s officer are allowed to attend.”
21. Weighing on the same issue of child protection under the law, the High Court, Mativo, J. (as he then was) stated in the case of AOO & 6 others v Attorney General & another [2017] KEHC 6022 (KLR) that:
“Children need special protection because they are among the most vulnerable members of society. They are dependent on others - their parents and families, or the state when these fail - for care and protection. As a result, the drafters of our Constitution made children's rights a priority - and stated that the best interests of a child are the overriding concern when it comes to any matter affecting a child. Thus, the inclusion in the Bill of Rights of a provision on the rights of the child was an important development for Kenyan children, many of whom have suffered and continue to suffer long imprisonments and detention in harsh conditions. The objective of this special protection is to ensure that the justice system treats every child in conflict with the law in a manner that recognizes and upholds human dignity and worth, and instills in the child respect for the fundamental rights and freedom of others. The Rule considers the developmental age of the child and the desirability of the child's reintegration in and assumption of a constructive role in society in accordance with the principles of balanced and restorative justice.”
22. The constitution expressly grants every child a right not to be detained , except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time . In the present case, the applicant has remained in custody pending trial from 2 nd June 2026 to-date. That is about two months now. He has therefore not only been detained but that period cannot be said to be the shortest appropriate period period for him. The reason offered is that his parents are unable to raise the bond terms of KShs 50,000/= with a surety of a like sum, modest as they seem, considering the charges facing him.
23. The constitutional provisions cited above with respect to bail are given statutory effect in section 123 and 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. As is relevant to this application, Section 123 provides that:
(1) …
(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
24. In the Bail and Bond Policy Guidelines produced by the National Council on the Administration of Justice Guideline 4.36 provides that:
“Courts shall inform accused persons of their rights to apply for review of bail decisions and conditions. Bail decisions and conditions should be reviewed on a regular basis, as the circumstances of the accused person and the case change.”
25. There is no doubt that where the trial court has failed to review the bond and bail terms, as provided for under section 123 CPC and the Bail and Bond Policy Guidelines, the accused person has statutory recourse to this court.
26. Courts have reiterated time and again that the primary purpose of bail is to secure the accused person’s attendance at court to answer the charge at the specified time . ( See the case of Ng’ang’a v Republic (1985) eKLR.).
27. In the case of Andrew Young Otieno v Republic [2017] KEHC 8607 (KLR) Kimaru, J. (as he then was) said as follows with regard to review of bond terms for an accused person :
“This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining the bond terms to be imposed. In the present application, it was clear to this court that the Applicant was unable to raise the bond terms imposed by the trial magistrate.”
28. The Bond and Bail Policy Guidelines provide under Guideline 4.26(c)(c) that where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms the court should call for a bail report to assist it on the appropriate terms to grant. The trial court does not seem to have called for a bail report before setting the bond terms. However, I do not find it expedient to call for one at this time given the fact that due to the time spent in custody, the process of having the applicant released should be expedited.
29. Having made all those observations, I agree with learned counsel for the respondent that that it cannot be said that the bond terms were unreasonable or excessive in the circumstances given the serious charges facing him. Further, although it is alleged that the parents of the applicant are unable to secure some security that would suffice to meet the terms of bond, thus the request for review of the same to cash bail, I have seen in the trial court file a letter dated 18 th June 2026 from the Court Administrator, Kwale Law Courts to the Land Registrar, Kwale forwarding title deed No. Kwale/Diani S.S/637 registered in the name of one Hassan Said Mwabuto and requesting that the same be urgently verified for authenticity as it is to be used as security in the case pending before the trial court. It is not clear though what became of the verification exercise as I see no response to that letter on the file.
30. All the same, I consider that the application is quite in order so that the best interests of the child are met with regard to his not continuing to be detained in custody. I note that the applicant’s father has indicated that he is ready, willing and able to provide some amount of cash as bail. Whether the same will be sufficient or not it is the trial court to determine since it is apparent that the applicant seems to have jumped the gun by failing to apply for a review of bond terms before the trial court. Had he gone before the trial court, the issue of the pending verification of the title deed to be used as security would as well have been addressed. That in itself would not be a bar to this court making a final determination on the issue. However, it is only proper that the trial court be accorded its jurisdictional status to exercise its discretion to make a decision on the issue of review of the bond terms and determine the issue of alternative cash bail on terms appropriate so that it does not appear that this court is out to emasculate from it that power. This court should not appear to direct the trial court on how to conduct its proceedings especially where it has not been demonstrated, as in the present case, that the proceedings before the court or the decision made therein is not correct, is illegal, or there was some impropriety thereof or that the proceedings were irregular, as required under section 362 CPC so as to call in this court’s supervisory power of revision.
31. However, it is hereby directed that given the circumstances of the applicant having remained in custody for two months now, the issue should be disposed of at once. I note that the matter comes up for mention before the trial court on 4 th August 2026. I believe this court has provided sufficient guidance to the trial court to enable it make its decision at once.
32. In the premises, it is directed that the mention before the trial court on 4 th August 2026 should proceed and the court should take cognizance of the proceedings herein on the application of the applicant for review of the bond terms to provide for an alternative of cash bail and/or appropriate proceedings and orders on approval of the surety. If the surety who provided the land title deed is still available let the trial court proceed to examine him immediately for approval pending the verification of the title deed since the exercise seems to be dragging on.
33. The applicant is at liberty to approach this court at any time through this same file for any further consideration of the issue.
34. Orders accordingly.
Ruling delivered , dated and signed in Open Court and Virtual Platform, MicrosoftTeams this 31 st day of July 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Arunga for the applicant
Vallerie for the respondent
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
HC. Cr. appln. No. E030/2026 12 Revision of bond terms
IN THE HIGH COURT OF KENYA AT KWALE
HC MISC. CRIMINAL APPLICATION NO. E030 OF 2024
(Coram: Andayi W. F., J.)
H. H. J..............................……………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………RESPONDENT
R U L I N G
1. The application herein by way of a chamber summons dated 24 th July 2026 is for this court to exercise its powers of revision under Article 165(6) and (7) of the Constitution as read with section 362 to 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) to call for the record in Kwale Magistrates Court Criminal Case No. E237 of 2026 Republic v. H. H. J. for the court to satisfy itself on the correctness, legality, propriety and regularity of the proceedings. In particular, it is prayed that this court should revise the trial magistrate’s order admitting the applicant to a bond of KShs 50,000/= with one surety of a like sum without an alternative of cash bail and to substitute the same with an order admitting the applicant to a cash bail of KShs 20,000/= or bond of KShs 50,000/= with an alternative cash bail of KShs 20,000/= or such other reasonable terms as this court may deem fit to grant.
2. The application is based on grounds that:
a. the applicant is a minor.
b. The applicant enjoys the constitutional right to bail under article 49(1)(h) of the Constitution of Kenya.
c. The best interests of the minor call for immediate intervention.
d. Continued incarceration has interrupted the applicant’s education.
e. The bond terms set by the trial court are excessive and operate to deny the applicant bail.
f. The trial court failed to exercise its discretion properly considering the facts before it.
g. The applicant’s family has demonstrated inability to secure a surety but can raise reasonable cash bail.
3. The Court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR) ) but, given the centrality of the right to a fair hearing enshrined in article 50 of the Constitution this court gave the parties the opportunity to make submissions. Learned counsel for the applicant has filed written submissions while learned counsel for the respondent made oral submissions.
4. Learned counsel for the applicant has submitted on the court’s supervisory jurisdiction under article 165(6) and (7) of the Constitution, and the court’s supervisory and revisionary powers under sections 362 and 364 of the Criminal Procedure Code (Cap. 75) Laws of Kenya. He has made submissions on the applicant’s constitutional right to be released on bond pending trial under Article 49(1)(h), right to be presumed innocent until the contrary is proved under Article 50(2)(a) and the best interests of the child under article 53(2) of the constitution and section 8 of the Children Act (Cap. 141) Laws of Kenya for the provision that every court dealing with children to prioritize the child's best interests. Learned counsel submits that the continued detention of the applicant has disrupted his education and exposed him to the harmful effects associated with prolonged incarceration of children. Further that the Supreme Court has repeatedly affirmed that whenever children's rights are implicated, courts must adopt an interpretation that best promotes the child's welfare and constitutional rights. Learned counsel submits that the family is ready to comply immediately with any reasonable cash bail directed by this court. He submits that the terms of bond for the applicant set by the trial court amount to a denial of bond as they are excessive and he is unable to afford them and that is why he is still in custody to-date despite his presumption of innocence. Learned counsel has cited the case of Jivraj Shah v Republic [1986] KECA 36 (KLR) for the holding that that bail terms should not be excessive or oppressive and should not amount to a denial of the constitutional right to bail. Although that position is correct, I have not found it as the holding in the cited case which dealt with bond pending appeal and not bond at the trial stage as the case herein. However, I agree with the submission that as held in the case of Republic v Danson Mgunya & Another [2010] KEHC 4116 (KLR) that an accused must be released on bail or bail on reasonable conditions where there are no compelling reasons not to be released. It is true that the primary purpose of bond is to secure the attendance of an accused person at trial and not to punish him by way of pre-trial detention through high bond terms.
5. Learned counsel submits that the trial court failed to exercise its discretion correctly while setting the bond terms by failing to consider a) the applicant's age; b) the constitutional principle of the best interests of the child; c) the family's demonstrated inability to secure a surety; d) the availability of cash bail as a less restrictive alternative; e) the prolonged incarceration of a child solely because of poverty.
6. The learned counsel for the respondent Ms Vallerie Ong’eti made oral submissions opposing the application. She submits that she has spoken to her colleague handling the matter at the lower court and feels that the bond terms as set are reasonable. Further that an application for review ought to have been made before the trial court.
7. I have considered the application, the grounds in support thereof and the submissions by learned counsels. The issue for determination is whether or not this court should exercise the revisionary powers with regard to the bond terms set by the trial court for the subject.
8. Article 165(6) and (7) of the constitution under which this application is brought provides as follows:
(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.
9. In furtherance of the constitutional edict, section 362 CPC enables the High Court to:
“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 such subordinate court.”
10. Section 364 CPC further provides for the powers of the High Court on revision thus:
(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) …
11. The applicant is charged in Kwale Magistrates Court Criminal Case No. E237 of 2026 on a charge of robbery with violence contrary to section 295 as read with section 266(2) (sic) of the Penal Code (Cap. 63) Laws of Kenya that on 8 th May 2026 at Kona Musa are in Diani location, Msambweni Sub-County within Kwale County within Coast Region while armed with dangerous weapons namely panga robbed a mobile phone make Samsung A07 black in colour and immediately after the time of such robbery threatened to use actual violence to the said Mwanahawa Wanjala.
12. The first issue to point out is that the trial court should read through the charge sheet and be satisfied that it conforms to the provisions of the law both in the charging section and the particulars section.
13. The trial court record shows that the applicant took plea on 15 th June 2026 after a pro bono advocate Mr. Rono had been appointed to appear for him. The trial court then set the bond terms at KShs 50,000/= with one surety of a like sum. Since that time, the case has come up for mention on two occasions, 29 th June 2026 and 20 th July 2026. The applicant has remained in custody an indication that he is yet to raise the bod terms set by the court.
14. I wish to immediately point out that the trial court should when fixing mention dates take into account the proviso to section 205 of the CPC that when an accused person has been committed to prison, adjournment of the case shall not be for more than fifteen clear days. I believe it is this provision of the law that has led to the good practice of trial courts ensuring that mentions of cases for persons detained in custody pending trial is routinely done after every 14 days. It is a statutory requirement and should be complied with. In this digital age, it is much easier now to conduct mentions by way of the virtual court where accused persons do not have to be physically transported to attend at the court house.
15. Back to the application herein, I note that on the two occasions that the case has come up for mention before the trial court, there was no application made for review of bond terms to an alternative of cash bail. The present application was filed on 24 th July 2026, shortly after the last mention before the trial court on 20 th July 2026. Therefore, the assertion in the supporting affidavit sworn on 24 th July 2026 by Mwanamkuu Hassan Jiro, the father of the applicant and submissions by learned counsel, first that the matter has been mentioned on three separate occasions and second that the prosecution (note: not the defence) requested the court to consider granting cash bail but the court declined, are not borne out of the court proceedings.
16. There is no gainsaying that constitutional and statutory provisions underpin an accused person’s right to be released on bail or bond. Article 49 1(h) of the Constitution guarantees an accused person the right to be released on bail unless there are compelling reasons for bail to be denied. These compelling reasons have to be provided by the State. Article 50(2) of the Constitution on the other hand provides for the rights of an accused person to a fair hearing whose components are inter alia the right to be presumed innocent until proven guilty.
17. In the present case, the applicant was granted bond by the plea court. However, he has remained in custody to-date. That makes it apparent that he is unable to raise the bond terms fixed by the court. However, as pointed out above the applicant’s plea herein that the trial court has declined to grant his request for review of the bond and bail terms without offering any reason whatsoever is not correct.
18. All the same, this court is alive to the fact that the applicant herein who is the subject of the proceedings before the magistrate’s court is a child. I have seen s copy of his certificate of birth which was produced before the trial court and it shows that he was borne on 18 th March 2009. He is therefore just about fifteen years old. This calls in the application of article 53 of the C onstitution with respect to the rights of a child. The relevant provisions of the article are as follows:
Article 53(1)(f):
"Every child has the right—
(f) not to be detained, except as a measure of last resort, and when detained, to be held—
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child’s sex and age.
Article 53(2) :
"A child’s best interests are of paramount importance in every matter concerning the child."
19. As submitted by learned counsel for the applicant, the Supreme Court has had occasion to consider the meaning of the provision “best interests of the child” in various decisions. For instance in the case of CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) the Supreme Court stated that:
“So, what does “the best interest” of the child mean, and what is its rationale and scope? Since the best interest of a child will vary from case to case depending on the situation, its determination and what constitutes it will depend on the unique circumstances of each case as we recently explained in MAK v RMAA & 4 others, SC Petition No 2 (E003) of 2022; [2023] KESC 21 (KLR). We said that;
“The concept of the child’s best interest is flexible and adaptable. It should be adapted and defined on an individual basis, according to the specific situation of the child concerned considering their personal context, situation and needs...
20. In relation to criminal proceedings, the Supreme Court went on to state that:
“Based on this recognition, that children in conflict with the law facing criminal charges are vulnerable due to their age and level of maturity, the trial process should not itself expose them further to avoidable intimidation, humiliation or distress. That explains why special courts have been established and special procedures adopted for the trial of children. Those procedures place restrictions on who can attend court proceedings involving a child and permit the trial court to hold sittings in camera at which only the presiding judicial officer, officers of the court and a children’s officer are allowed to attend.”
21. Weighing on the same issue of child protection under the law, the High Court, Mativo, J. (as he then was) stated in the case of AOO & 6 others v Attorney General & another [2017] KEHC 6022 (KLR) that:
“Children need special protection because they are among the most vulnerable members of society. They are dependent on others - their parents and families, or the state when these fail - for care and protection. As a result, the drafters of our Constitution made children's rights a priority - and stated that the best interests of a child are the overriding concern when it comes to any matter affecting a child. Thus, the inclusion in the Bill of Rights of a provision on the rights of the child was an important development for Kenyan children, many of whom have suffered and continue to suffer long imprisonments and detention in harsh conditions. The objective of this special protection is to ensure that the justice system treats every child in conflict with the law in a manner that recognizes and upholds human dignity and worth, and instills in the child respect for the fundamental rights and freedom of others. The Rule considers the developmental age of the child and the desirability of the child's reintegration in and assumption of a constructive role in society in accordance with the principles of balanced and restorative justice.”
22. The constitution expressly grants every child a right not to be detained , except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time . In the present case, the applicant has remained in custody pending trial from 2 nd June 2026 to-date. That is about two months now. He has therefore not only been detained but that period cannot be said to be the shortest appropriate period period for him. The reason offered is that his parents are unable to raise the bond terms of KShs 50,000/= with a surety of a like sum, modest as they seem, considering the charges facing him.
23. The constitutional provisions cited above with respect to bail are given statutory effect in section 123 and 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. As is relevant to this application, Section 123 provides that:
(1) …
(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
24. In the Bail and Bond Policy Guidelines produced by the National Council on the Administration of Justice Guideline 4.36 provides that:
“Courts shall inform accused persons of their rights to apply for review of bail decisions and conditions. Bail decisions and conditions should be reviewed on a regular basis, as the circumstances of the accused person and the case change.”
25. There is no doubt that where the trial court has failed to review the bond and bail terms, as provided for under section 123 CPC and the Bail and Bond Policy Guidelines, the accused person has statutory recourse to this court.
26. Courts have reiterated time and again that the primary purpose of bail is to secure the accused person’s attendance at court to answer the charge at the specified time . ( See the case of Ng’ang’a v Republic (1985) eKLR.).
27. In the case of Andrew Young Otieno v Republic [2017] KEHC 8607 (KLR) Kimaru, J. (as he then was) said as follows with regard to review of bond terms for an accused person :
“This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining the bond terms to be imposed. In the present application, it was clear to this court that the Applicant was unable to raise the bond terms imposed by the trial magistrate.”
28. The Bond and Bail Policy Guidelines provide under Guideline 4.26(c)(c) that where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms the court should call for a bail report to assist it on the appropriate terms to grant. The trial court does not seem to have called for a bail report before setting the bond terms. However, I do not find it expedient to call for one at this time given the fact that due to the time spent in custody, the process of having the applicant released should be expedited.
29. Having made all those observations, I agree with learned counsel for the respondent that that it cannot be said that the bond terms were unreasonable or excessive in the circumstances given the serious charges facing him. Further, although it is alleged that the parents of the applicant are unable to secure some security that would suffice to meet the terms of bond, thus the request for review of the same to cash bail, I have seen in the trial court file a letter dated 18 th June 2026 from the Court Administrator, Kwale Law Courts to the Land Registrar, Kwale forwarding title deed No. Kwale/Diani S.S/637 registered in the name of one Hassan Said Mwabuto and requesting that the same be urgently verified for authenticity as it is to be used as security in the case pending before the trial court. It is not clear though what became of the verification exercise as I see no response to that letter on the file.
30. All the same, I consider that the application is quite in order so that the best interests of the child are met with regard to his not continuing to be detained in custody. I note that the applicant’s father has indicated that he is ready, willing and able to provide some amount of cash as bail. Whether the same will be sufficient or not it is the trial court to determine since it is apparent that the applicant seems to have jumped the gun by failing to apply for a review of bond terms before the trial court. Had he gone before the trial court, the issue of the pending verification of the title deed to be used as security would as well have been addressed. That in itself would not be a bar to this court making a final determination on the issue. However, it is only proper that the trial court be accorded its jurisdictional status to exercise its discretion to make a decision on the issue of review of the bond terms and determine the issue of alternative cash bail on terms appropriate so that it does not appear that this court is out to emasculate from it that power. This court should not appear to direct the trial court on how to conduct its proceedings especially where it has not been demonstrated, as in the present case, that the proceedings before the court or the decision made therein is not correct, is illegal, or there was some impropriety thereof or that the proceedings were irregular, as required under section 362 CPC so as to call in this court’s supervisory power of revision.
31. However, it is hereby directed that given the circumstances of the applicant having remained in custody for two months now, the issue should be disposed of at once. I note that the matter comes up for mention before the trial court on 4 th August 2026. I believe this court has provided sufficient guidance to the trial court to enable it make its decision at once.
32. In the premises, it is directed that the mention before the trial court on 4 th August 2026 should proceed and the court should take cognizance of the proceedings herein on the application of the applicant for review of the bond terms to provide for an alternative of cash bail and/or appropriate proceedings and orders on approval of the surety. If the surety who provided the land title deed is still available let the trial court proceed to examine him immediately for approval pending the verification of the title deed since the exercise seems to be dragging on.
33. The applicant is at liberty to approach this court at any time through this same file for any further consideration of the issue.
34. Orders accordingly.
Ruling delivered , dated and signed in Open Court and Virtual Platform, MicrosoftTeams this 31 st day of July 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Arunga for the applicant
Vallerie for the respondent
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
HC. Cr. appln. No. E030/2026 12 Revision of bond terms