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JudgmentJESUSA NYAWADE OCHWANG VS The Republic4 min read

JESUSA NYAWADE OCHWANG VS The Republic

High Court at Milimani High Court · · Lilian Mutende


  1. Jesusa Nawade Ochwang’, the Applicant, approached this court through an application dated 9th April, 2024 seeking review, variation and/or modification of the order of the lower court issued on 9th April, 2024 concerning bail.
  2. The applicant seeks reduction of bond terms to a figure that is not excessive and which does not defeat the spirit, intention and purpose of the Constitution, and, in particular to grant the applicant a cash bail of Ksh. 15,000/-
  3. The application is based on grounds that the applicant was granted a bond of Ksh. 300,000/-  which she is unable to raise.  That following the order of the court a pre-bail report was filed which recommended release of the applicant on a cash bail of Ksh. 15,000/-.  That the court reviewed the bond terms from Ksh. 300,000/- to Ksh. 180,000/- with one (1) surety; terms that are still beyond the applicant hence the applicants’ fundamental rights would only be served by substantial review of the bond terms.
  4. The application is supported by an affidavit sworn by Mary Amurono Ochwang’ the mother of the applicant who deposes that neither the applicant nor her family member can raise bond terms set by the court. That the parents of the applicant are of meagre means, peasants in the village without land or any property in their name and as such are unable to raise a bond of Ksh. 180,000/-
  5. That to protect the spirit of the Constitution and specifically the fundamental right to bail it is necessary for the court to further review the bail terms to ensure that the rights for an applicant are not frustrated by bail terms that are excessive and not achievable.
  6. The respondent filed grounds of opposition stating that there is no ground for justification of interference with the discretion of the lower court on matters of granting bond to the accused person unless it is shown by way of demonstration that the bond terms thereof were manifestly harsh, excessive and unreasonable in the circumstances of the case.
  7. The application was disposed through oral submissions.  Mr. Wangalwa learned Counsel for the applicant reiterated the averments on the body of the application and added that the applicant has been behind the bar for the last two (2) years.  That the parents of the applicant are reliable and they will ensure the applicant turns up for trial if released on a cash bail of Ksh, 15,000/-
  8. The application is opposed by the Respondent who argue through Mr. Mutuma learned Prosecution Counsel that the applicant faces a charge of Sexual Assault contrary to Section 5(1)(a)(2) of the Sexual Offences Act and the bond granted and reviewed to Ksh. 180,000/- is sufficient given the nature of the offence.
  9. I have duly considered rival arguments and perused the lower court record.  The supervisory jurisdiction of the High Court upon the lower court is enshrined in the Constitution. (See Article 165(6) of the Constitution).
  10. Article 49(1) (h) of the Constitution provides for release of an accused person on reasonable bail terms.  Conditions and terms of bond should be proportionate to the offence alleged and must also take into consideration the circumstances of the accused.  The court which adjudicates over a matter must exercise sound judgment in reaching the decision to impose bail terms.  The order granted should be fair and sensible.
  11. At the   outset the   applicant   was   granted   bond   of

Ksh. 300,000/- with a surety.  The order was made by the court suo moto.  Five months later the court reduced the bond to Ksh. 180,000/- with a surety.  Bail information report filed recommended that the applicant be released on a cash bail of Ksh.15,000/-. However, a court is not bound by recommendations of a Probation Officer although It may be persuaded by the proposal if favourable.

  1. Be as it may, the Judiciary Bail and Bond Policy guidelines provide that:

“ 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. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.24.”

  1. Clearly bail terms should be reasonable but not  too low so as to entice an accused to abscond.  With that in mind I do note that the applicant herein is unable to meet bail terms set which means that bail terms set in her case were not equitable, but, harsh and excessive. In the circumstances, I find the application meritorious.  Therefore, I review the terms of bail set by the lower court to Ksh. 30,000/- with a surety in a like sum.

14.    It is so ordered.



    JESUSA NYAWADE OCHWANG VS The Republic JESUSA NYAWADE OCHWANG VS The Republic