1.The turn of events in this petition brought to mind the famous poem( IF)by Rudyard Kipling only with some negative connotation ,hence my if only theme’. Why do I say so?
2.What was otherwise an ordinary bond application took a markedly different turn owing to the nature of the representation and the insistence on oral presentations by counsels.
3.Ordinarily, since the onset of virtual court platforms, a majority of courts ,including this court,dispose of applications brought under certificates of urgency at the ex parte stage in chambers and thereafter issue directions or orders through the CTS. Had the matter proceeded in that ordinary course, it would have been determined on the face of the pleadings.
4.If only the advocates had not insisted on making oral presentations , the matter would likely have taken a different trajectory.
5.On 15.1.2026 a physical file was nonetheless opened, and the registry indicated that counsel were present and wished to be heard urgently.
6.And what a team it was.Not one, not two, nor three advocates, but what can only be described as the crème de la crème of criminal law practitioners in Kenya, led by The very Senior Advocate ; Dr. John Khaminwa ,Mr. Cliff Ombeta,Mr.Wamotsa & Ms Adundo. The court was urged to exercise its discretion, to be guided by conscience, and to release the applicants on bond.
7.It was during those submissions that I noted some discrepancies.
8.The application, as framed, stated that the applicants were arrested on 12th January 2026 and detained with a promise or threat of being arraigned on 14th January 2026. When the matter came before this court on 15th January 2026, the presentation suggested a violation of Article 49(1)(f) of the Constitution the well-known twenty-four-hour rule.
9. If only the matter had rested on that representation , this court would have intervened without hesitation, for Article 49 is not ornamental and courts are constitutionally bound to jealously guard personal liberty.
10.However, as our very Senior advocate made his submissions, references were made to terrorism-related offences, and authorities were cited on the manner in which courts ought to handle terror suspects. A document was then handed to the court. I initially assumed it to be an authority.
11. If only that document had not been placed before me , I would not have discovered that the applicants had already been taken before the Chief Magistrate’s Court at Mombasa in CM’s Miscellaneous Application No. 029 of 2026 , where the investigating officer sought and obtained leave to detain the applicants pending investigations.
12.That disclosure altered the entire complexion of the application.
13.At that point, I sought clarification from the Counsel as to whether the present application was intended to review or challenge the earlier orders, or whether those proceedings had even been referenced. The response was that the earlier application had not been mentioned because the present application had already been drafted.
14. If only the true position had been candidly disclosed , this court would not have been invited to consider the matter on an incomplete factual foundation.
15.It was at this point that the court directed that the application be served .
16.Further , upon becoming aware of the earlier proceedings, this court, suo moto , called for the lower court file pursuant to its supervisory jurisdiction under Article 165(6) and (7) of the Constitution , as read together with section 262 of the Criminal Procedure Code . The scope of this supervisory power is well settled. In Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703 , the court held that supervisory jurisdiction exists to ensure that subordinate courts act within the law and do not occasion injustice through illegality or procedural impropriety. More recently, in George Aladwa Omwera v Director of Public Prosecutions & Another [2016] eKLR , the High Court emphasized that supervisory powers are not appellate in nature and should only be exercised where there is demonstrable illegality, irrationality, or procedural impropriety.
17.The matter was then argued inter partes though the respondents decried late service. Mr kimanzi and Mr. Kariuki represented the respondents. I did not allow them the 7 days they sought to respond as that would have rendered the application academic.
18.Lengthy submissions were made by the applicants and the court was referred to various books on terrorism such as ;
1. Claire de Than and Edwin Shorts, International Criminal Law and Human Rights pg 252-256
2. Omer Elagab, International Law Documents relating to Terrorism Third Edition
3. Pieter Jan Kuper, Jan Wouters, Frank Hoffmeister, Geert De Baere and Thomas Ramopoulos, The Laws of EU External Relations Second Edition
4. Kent Roach, Comparative Counter-Terrorism Law pg 136 and 137
5. Katja LH Samuel, The OIC, the UN and Counter-Terrorism Law-Making Conflicting or Cooperative Legal Orders
6. Ben Saul, International Law on Terrorism pg 716 and 717
19.The other relevant case law include REPUBLIC v DANSON MGUNYA & another [2010] KEHC 4116 (KLR),where the court held that the state must show that there is existence of compelling reasons and referred to CLIVE MACHOLEWE –V- REPUBLIC (171 OF 2004) (2004) MWHC 53, where Justice J. Katsala referred to a Malawi Supreme Court of Appeal decision – M. LUNGUZI –V- REPUBLIC, MSCA APPEAL NO. 1 OF 1995 where the court held:
" In my judgment the practice should rather be to require the state to prove to the satisfaction of the court that in the circumstances of the case, the interest of justice requires the accused be deprived of his right to be released from detention. The burden should be on the state and not on the accused. He who alleges must prove. This is what we have always upheld in our courts. If the state wants the accused to be detained pending his trial then it is up to the state to prove when the court should make such an order.”
20.The court can utilize its revisionary jurisdiction to set aside CM’s Miscellaneous Application No. 029 of 2026 if it is satisfied that the investigations are not being carried out with ulterior motives.
21.The court in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] KEHC 2673 (KLR,) held:
" It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene."
22.Further in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR also held:
" It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua V. R. [2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR 69 .”
23.Having carefully perused the record of the Chief Magistrate’s Court, the submissions by the counsel and having looked at the case law and the academic writings this court finds as hereunder;
a)The applicants are represented by very senior and highly experienced counsel, well-resourced and fully conversant with constitutional litigation and criminal practice. This was even shown by the huge suitcase of resources that was hauled into the chambers . Therefore, the omission to disclose subsisting proceedings directly touching on the applicants’ detention cannot be explained innocently. A party seeking the court’s discretion must approach the court with clean hands, particularly where equitable relief such as bond is sought.
b)Ironically, this was the same argument raised by the applicants and in fact the parting shot by Dr. Khaminwa. All along the counsel argued that this matter has been invaded by the fatal virus of corruption and that is why a traffic matter was altered to terrorism. That, the corrupt state agencies had infiltrated the criminal justice system to frustrate, an elderly, sickly refugee and hence a vulnerable person under ARTICLE 57 of our constitution. I was urged to stand firm and do as our Christian brothers say ‘put the devil to shame’.
c)It is true that there are sick elements in the public sector, but what do we say or do when the private practioners don’t play by the book? I have pointed out that the petition on record is not what was argued by the esteemed team of counsels. I have also pointed out, that with their collective weight, amending an application was not rocket science. I am emphasizing this since integrity and proper conduct was the running theme in the applicants’ submissions. My point being, if you live in a glass house, do not throw stones. Hence my fifth if only , the team was more candid.
d)Back to the review which is not what was before me. It is not in dispute that the applicants’ are foreign nationals . While foreign status alone is not a bar to bond, it is a relevant consideration, particularly in terrorism-related matters involving transnational dimensions, flight risk, and enforceability of attendance, as recognized. In the case of Adedeji & Another in Criminal |Revision E002 of 2023(2024)(KEHC 1756(KLR) DR.Kavedza stated ; In cases where the accused is a foreigner, the courts have come up with certain principles to be taken into further consideration in determining whether or not to release the accused on bail/bond pending trial. The cases this court has considered include Republic vs Kokonya Muhssin [2013] eKLR, Republic vs Dwight Sagaray & 4 Others [2013] eKLR, Republic vs Makoy Madhak Deer [2015] eKLR and Republic v Richard David Alden [2016] eKLR. Being a foreigner per se is not an inhibiting consideration in determining whether or not the accused should be released on bail pending trial. Another factor is whether the accused has a fixed abode in Kenya and whether he has property or familial connections in Kenya. Another factor is the nature of the charge that the accused is facing and whether the likely sentence to be meted out may serve as an incentive or impetus for the accused to abscond from the jurisdiction of the court. Also to be taken into consideration is the antecedent and subsequent conduct of the accused before and after being charged. The factors listed above are by no means exhaustive. Each case will depend on its facts and circumstances.
e) The applicants posited that they have a fixed abode, have invested heavily in Kenya and are not a flight risk. It’s also the applicants’ counsels who brought up the existence of other cases facing the applicants in Kilifi and Mombasa. The nature of those cases was not disclosed but it would only go to show that the applicants were not strangers to the investigators and so it was not just a case of a simple traffic nature.
f) The court also considered submissions that the first applicant is unwell. However, even from the material placed before the court, the alleged frailty is difficult to reconcile with allegations of recent violence and partying that came up during the hearing. The court is not persuaded that the health concerns raised justify intervention.
g) This court remains steadfast in its duty to uphold Article 49 of the Constitution . Equally, it must guard against abuse of its process, particularly in matters touching on terrorism, national security, and foreign nationals . Discretion cannot be exercised on the basis of half-truths.
h) For those reasons, the court finds that the applicants did not approach this court with clean hands. The supervisory review of the lower court finds no illegality, impropriety, or procedural irregularity in the orders issued by Hon.D. Odhiambo(S.RM) . The detention was sanctioned by a court of competent jurisdiction and was subject to judicial oversight.
i)The fact that the application was silent on the court appearance shows sharp practice aimed at stealing the match. The review is not what was filed and even though I looked at the file,the challis was poisoned.
j)To use their own words the applicants’ did not come to court with clean hands: If only, they had.
Disposition
-The application for release on bond is hereby dismissed .
-The first applicant to continue receiving medical treatment and he may be examined in any hospital within Mombasa if the need arises.
-And upon further submissions by the counsels the respondents are temporarily restrained from deporting the two applicants pending the next court appearance or without a valid court order.
-No order as to costs.
DATED AT MOMBASA THIS 16th DAY OF JANUARY 2026
WENDY KAGENDO
JUDGE
In the presence of;
Dr. Khaminwa, Mr. Cliff Ombeta, Mr. Wamotsa & Ms. Adundo for the Applicants.
Mr Kariuki & Kimanthi for the Respondents.
2.What was otherwise an ordinary bond application took a markedly different turn owing to the nature of the representation and the insistence on oral presentations by counsels.
3.Ordinarily, since the onset of virtual court platforms, a majority of courts ,including this court,dispose of applications brought under certificates of urgency at the ex parte stage in chambers and thereafter issue directions or orders through the CTS. Had the matter proceeded in that ordinary course, it would have been determined on the face of the pleadings.
4.If only the advocates had not insisted on making oral presentations , the matter would likely have taken a different trajectory.
5.On 15.1.2026 a physical file was nonetheless opened, and the registry indicated that counsel were present and wished to be heard urgently.
6.And what a team it was.Not one, not two, nor three advocates, but what can only be described as the crème de la crème of criminal law practitioners in Kenya, led by The very Senior Advocate ; Dr. John Khaminwa ,Mr. Cliff Ombeta,Mr.Wamotsa & Ms Adundo. The court was urged to exercise its discretion, to be guided by conscience, and to release the applicants on bond.
7.It was during those submissions that I noted some discrepancies.
8.The application, as framed, stated that the applicants were arrested on 12th January 2026 and detained with a promise or threat of being arraigned on 14th January 2026. When the matter came before this court on 15th January 2026, the presentation suggested a violation of Article 49(1)(f) of the Constitution the well-known twenty-four-hour rule.
9. If only the matter had rested on that representation , this court would have intervened without hesitation, for Article 49 is not ornamental and courts are constitutionally bound to jealously guard personal liberty.
10.However, as our very Senior advocate made his submissions, references were made to terrorism-related offences, and authorities were cited on the manner in which courts ought to handle terror suspects. A document was then handed to the court. I initially assumed it to be an authority.
11. If only that document had not been placed before me , I would not have discovered that the applicants had already been taken before the Chief Magistrate’s Court at Mombasa in CM’s Miscellaneous Application No. 029 of 2026 , where the investigating officer sought and obtained leave to detain the applicants pending investigations.
12.That disclosure altered the entire complexion of the application.
13.At that point, I sought clarification from the Counsel as to whether the present application was intended to review or challenge the earlier orders, or whether those proceedings had even been referenced. The response was that the earlier application had not been mentioned because the present application had already been drafted.
14. If only the true position had been candidly disclosed , this court would not have been invited to consider the matter on an incomplete factual foundation.
15.It was at this point that the court directed that the application be served .
16.Further , upon becoming aware of the earlier proceedings, this court, suo moto , called for the lower court file pursuant to its supervisory jurisdiction under Article 165(6) and (7) of the Constitution , as read together with section 262 of the Criminal Procedure Code . The scope of this supervisory power is well settled. In Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703 , the court held that supervisory jurisdiction exists to ensure that subordinate courts act within the law and do not occasion injustice through illegality or procedural impropriety. More recently, in George Aladwa Omwera v Director of Public Prosecutions & Another [2016] eKLR , the High Court emphasized that supervisory powers are not appellate in nature and should only be exercised where there is demonstrable illegality, irrationality, or procedural impropriety.
17.The matter was then argued inter partes though the respondents decried late service. Mr kimanzi and Mr. Kariuki represented the respondents. I did not allow them the 7 days they sought to respond as that would have rendered the application academic.
18.Lengthy submissions were made by the applicants and the court was referred to various books on terrorism such as ;
1. Claire de Than and Edwin Shorts, International Criminal Law and Human Rights pg 252-256
2. Omer Elagab, International Law Documents relating to Terrorism Third Edition
3. Pieter Jan Kuper, Jan Wouters, Frank Hoffmeister, Geert De Baere and Thomas Ramopoulos, The Laws of EU External Relations Second Edition
4. Kent Roach, Comparative Counter-Terrorism Law pg 136 and 137
5. Katja LH Samuel, The OIC, the UN and Counter-Terrorism Law-Making Conflicting or Cooperative Legal Orders
6. Ben Saul, International Law on Terrorism pg 716 and 717
19.The other relevant case law include REPUBLIC v DANSON MGUNYA & another [2010] KEHC 4116 (KLR),where the court held that the state must show that there is existence of compelling reasons and referred to CLIVE MACHOLEWE –V- REPUBLIC (171 OF 2004) (2004) MWHC 53, where Justice J. Katsala referred to a Malawi Supreme Court of Appeal decision – M. LUNGUZI –V- REPUBLIC, MSCA APPEAL NO. 1 OF 1995 where the court held:
" In my judgment the practice should rather be to require the state to prove to the satisfaction of the court that in the circumstances of the case, the interest of justice requires the accused be deprived of his right to be released from detention. The burden should be on the state and not on the accused. He who alleges must prove. This is what we have always upheld in our courts. If the state wants the accused to be detained pending his trial then it is up to the state to prove when the court should make such an order.”
20.The court can utilize its revisionary jurisdiction to set aside CM’s Miscellaneous Application No. 029 of 2026 if it is satisfied that the investigations are not being carried out with ulterior motives.
21.The court in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] KEHC 2673 (KLR,) held:
" It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene."
22.Further in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR also held:
" It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua V. R. [2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR 69 .”
23.Having carefully perused the record of the Chief Magistrate’s Court, the submissions by the counsel and having looked at the case law and the academic writings this court finds as hereunder;
a)The applicants are represented by very senior and highly experienced counsel, well-resourced and fully conversant with constitutional litigation and criminal practice. This was even shown by the huge suitcase of resources that was hauled into the chambers . Therefore, the omission to disclose subsisting proceedings directly touching on the applicants’ detention cannot be explained innocently. A party seeking the court’s discretion must approach the court with clean hands, particularly where equitable relief such as bond is sought.
b)Ironically, this was the same argument raised by the applicants and in fact the parting shot by Dr. Khaminwa. All along the counsel argued that this matter has been invaded by the fatal virus of corruption and that is why a traffic matter was altered to terrorism. That, the corrupt state agencies had infiltrated the criminal justice system to frustrate, an elderly, sickly refugee and hence a vulnerable person under ARTICLE 57 of our constitution. I was urged to stand firm and do as our Christian brothers say ‘put the devil to shame’.
c)It is true that there are sick elements in the public sector, but what do we say or do when the private practioners don’t play by the book? I have pointed out that the petition on record is not what was argued by the esteemed team of counsels. I have also pointed out, that with their collective weight, amending an application was not rocket science. I am emphasizing this since integrity and proper conduct was the running theme in the applicants’ submissions. My point being, if you live in a glass house, do not throw stones. Hence my fifth if only , the team was more candid.
d)Back to the review which is not what was before me. It is not in dispute that the applicants’ are foreign nationals . While foreign status alone is not a bar to bond, it is a relevant consideration, particularly in terrorism-related matters involving transnational dimensions, flight risk, and enforceability of attendance, as recognized. In the case of Adedeji & Another in Criminal |Revision E002 of 2023(2024)(KEHC 1756(KLR) DR.Kavedza stated ; In cases where the accused is a foreigner, the courts have come up with certain principles to be taken into further consideration in determining whether or not to release the accused on bail/bond pending trial. The cases this court has considered include Republic vs Kokonya Muhssin [2013] eKLR, Republic vs Dwight Sagaray & 4 Others [2013] eKLR, Republic vs Makoy Madhak Deer [2015] eKLR and Republic v Richard David Alden [2016] eKLR. Being a foreigner per se is not an inhibiting consideration in determining whether or not the accused should be released on bail pending trial. Another factor is whether the accused has a fixed abode in Kenya and whether he has property or familial connections in Kenya. Another factor is the nature of the charge that the accused is facing and whether the likely sentence to be meted out may serve as an incentive or impetus for the accused to abscond from the jurisdiction of the court. Also to be taken into consideration is the antecedent and subsequent conduct of the accused before and after being charged. The factors listed above are by no means exhaustive. Each case will depend on its facts and circumstances.
e) The applicants posited that they have a fixed abode, have invested heavily in Kenya and are not a flight risk. It’s also the applicants’ counsels who brought up the existence of other cases facing the applicants in Kilifi and Mombasa. The nature of those cases was not disclosed but it would only go to show that the applicants were not strangers to the investigators and so it was not just a case of a simple traffic nature.
f) The court also considered submissions that the first applicant is unwell. However, even from the material placed before the court, the alleged frailty is difficult to reconcile with allegations of recent violence and partying that came up during the hearing. The court is not persuaded that the health concerns raised justify intervention.
g) This court remains steadfast in its duty to uphold Article 49 of the Constitution . Equally, it must guard against abuse of its process, particularly in matters touching on terrorism, national security, and foreign nationals . Discretion cannot be exercised on the basis of half-truths.
h) For those reasons, the court finds that the applicants did not approach this court with clean hands. The supervisory review of the lower court finds no illegality, impropriety, or procedural irregularity in the orders issued by Hon.D. Odhiambo(S.RM) . The detention was sanctioned by a court of competent jurisdiction and was subject to judicial oversight.
i)The fact that the application was silent on the court appearance shows sharp practice aimed at stealing the match. The review is not what was filed and even though I looked at the file,the challis was poisoned.
j)To use their own words the applicants’ did not come to court with clean hands: If only, they had.
Disposition
-The application for release on bond is hereby dismissed .
-The first applicant to continue receiving medical treatment and he may be examined in any hospital within Mombasa if the need arises.
-And upon further submissions by the counsels the respondents are temporarily restrained from deporting the two applicants pending the next court appearance or without a valid court order.
-No order as to costs.
DATED AT MOMBASA THIS 16th DAY OF JANUARY 2026
WENDY KAGENDO
JUDGE
In the presence of;
Dr. Khaminwa, Mr. Cliff Ombeta, Mr. Wamotsa & Ms. Adundo for the Applicants.
Mr Kariuki & Kimanthi for the Respondents.