1. The Applicants are aggrieved by an Ruling and Order of the Trial Court of 03/06/2026 in Kikuyu Magistrates Criminal Case No. E407 of 2026 by which the Applicants, as the Accused Persons before the Subordinate Court, were admitted to Bond in the amount of KShs. 5,000,000.00 each or in the alternative Bail in the amount of KShs. 1,000,000.00 each. The Applicants have approached this Court by way of a Miscellaneous Criminal Revision brought by way of the Notice of Motion Application dated 04/06/2026 invoking the revisionary powers bestowed on the High Court and seeking the setting aside of the impugned orders and have the Applicants admitted to revised lower terms.
2. The High Court has jurisdiction to entertain an application for revision and its power of revision is set out in Article 165 of the Constitution of Kenya 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 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.”
3. Section 362 of the Criminal Procedure Code further states:
“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”.
4. The High Court has, in exercise of supervisory jurisdiction as revision court, power under section to revise bail orders of the trial court under both the general revisionary jurisdiction of section 364 and section 123 (3) of the Criminal Procedure Code , which provides as follows:
“123.Bail in certain cases
1.When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
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.”
5. Section 123A of the Code gives the factors that may influence grant or denial of bail as follows:
“123A.Exception to right to bail
(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
a. the nature or seriousness of the offence;
b. the character, antecedents, associations and community ties of the accused person;
c. the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
d. the strength of the evidence of his having committed the offence;”
6. The Applicants have been charged with offences under Sections 199, 200, 206, and 208 of the East African Community Customs Management Act [EACCMA]. The particulars stated in the Charge Sheet dated 21/05/2025 alleged that the Applicants were found in possession of uncustomed cigarettes and shisha/hookah tobacco flavour of an estimated total values of KShs. 18,000,000.00.
7. It is my considered view that the purpose of the revisionary powers of the High Court is to correct manifest irregularities or illegalities and give appropriate directions. The Court is also empowered to alter or reverse an order. In exercising discretion to this extent, this Court hereby takes cognizance of the fact the bond and bail terms imposed by the Trial Court clearly fall within the ambit of the seminal guidance by Luka Kimaru J ( as he then was) in Andrew Young Otieno -v- Republic [2017] KEHC 8607 (KLR) in which the Learned Judge held as follows:
“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.”
8. In the present case, it is clear to my mind that the terms imposed by the Trial Court are manifestly too high and are tantamount to a denial of the constitutional right to bail bond albeit under the guise of the grant of the same. The amounts imposed are more within the range of what the High Court imposes for the offence of murder, when it sits as a Trial Court. Such is the deviation by the Trial Court, from what could be considered a reasonable bail/bond amount, and so manifest is the lower courts error, that this Court takes the view that it would be just for this Court to take any other course than summary determination of their Revision Application in their favour.
9. While offences against Customs Law are not trivial, and the value of the goods is high, the presumption of innocence and the imperative that Bail/Bond should be such that it secures attendance by the Accused Person(s) but not be punitive weigh greater. In that regard, this Court therefore feels justified to interfere with the discretion of the trial court on bail terms herein for being excessive and inordinately high and disproportionate to the primary object of securing attendance of the accused at their trial.
Orders
10. Accordingly, for the foregoing reasons, the Court will pursuant to Sections 123 and 364 of the Criminal Procedure Code revise the bond terms granted by the Trial Court and reduce the same to a Cash Bail of KShs. 250,000.00 for each Accused Person, or in the alternative Bond in the amount of Kenya Shillings 500,000.00 with one surety of the same amount for each Accused Person.
11. Orders Accordingly. This Summary Ruling being fully determinative of the Matter, File Closed Accordingly.
DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS FIFTH DAY OF JUNE 2026
……………………………………………………………
BAHATI MWAMUYE MBS
JUDGE
2. The High Court has jurisdiction to entertain an application for revision and its power of revision is set out in Article 165 of the Constitution of Kenya 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 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.”
3. Section 362 of the Criminal Procedure Code further states:
“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”.
4. The High Court has, in exercise of supervisory jurisdiction as revision court, power under section to revise bail orders of the trial court under both the general revisionary jurisdiction of section 364 and section 123 (3) of the Criminal Procedure Code , which provides as follows:
“123.Bail in certain cases
1.When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.
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.”
5. Section 123A of the Code gives the factors that may influence grant or denial of bail as follows:
“123A.Exception to right to bail
(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—
a. the nature or seriousness of the offence;
b. the character, antecedents, associations and community ties of the accused person;
c. the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and;
d. the strength of the evidence of his having committed the offence;”
6. The Applicants have been charged with offences under Sections 199, 200, 206, and 208 of the East African Community Customs Management Act [EACCMA]. The particulars stated in the Charge Sheet dated 21/05/2025 alleged that the Applicants were found in possession of uncustomed cigarettes and shisha/hookah tobacco flavour of an estimated total values of KShs. 18,000,000.00.
7. It is my considered view that the purpose of the revisionary powers of the High Court is to correct manifest irregularities or illegalities and give appropriate directions. The Court is also empowered to alter or reverse an order. In exercising discretion to this extent, this Court hereby takes cognizance of the fact the bond and bail terms imposed by the Trial Court clearly fall within the ambit of the seminal guidance by Luka Kimaru J ( as he then was) in Andrew Young Otieno -v- Republic [2017] KEHC 8607 (KLR) in which the Learned Judge held as follows:
“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.”
8. In the present case, it is clear to my mind that the terms imposed by the Trial Court are manifestly too high and are tantamount to a denial of the constitutional right to bail bond albeit under the guise of the grant of the same. The amounts imposed are more within the range of what the High Court imposes for the offence of murder, when it sits as a Trial Court. Such is the deviation by the Trial Court, from what could be considered a reasonable bail/bond amount, and so manifest is the lower courts error, that this Court takes the view that it would be just for this Court to take any other course than summary determination of their Revision Application in their favour.
9. While offences against Customs Law are not trivial, and the value of the goods is high, the presumption of innocence and the imperative that Bail/Bond should be such that it secures attendance by the Accused Person(s) but not be punitive weigh greater. In that regard, this Court therefore feels justified to interfere with the discretion of the trial court on bail terms herein for being excessive and inordinately high and disproportionate to the primary object of securing attendance of the accused at their trial.
Orders
10. Accordingly, for the foregoing reasons, the Court will pursuant to Sections 123 and 364 of the Criminal Procedure Code revise the bond terms granted by the Trial Court and reduce the same to a Cash Bail of KShs. 250,000.00 for each Accused Person, or in the alternative Bond in the amount of Kenya Shillings 500,000.00 with one surety of the same amount for each Accused Person.
11. Orders Accordingly. This Summary Ruling being fully determinative of the Matter, File Closed Accordingly.
DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS FIFTH DAY OF JUNE 2026
……………………………………………………………
BAHATI MWAMUYE MBS
JUDGE