1. On 3/4/2025, Edmund Makiti Tuli was charged with Defilement contrary to section 8(1)(3) of sexual offences Act No. 3 of 2006.
Particulars are that Edmund Makiti on the 19th day of January, 2025 at Kwamatungu Village in Nzaui Sub County within Makueni County intentionality and unlawfully caused his penis to penetrate the vagina of G.K.M a child aged 15 years.
In the Alternative Charge – He was charged with indecent act with a child contrary to section 11(1) of the sexual offence Act No. 3 of 2006.
Particulars are that Edmund Makiti Tuli on 19th day of January 2015 at Kwamatungu Village in Nzaui Subcounty within Makueni County, intentionally touched the vagina of G.K.M a child aged 15 years with his penis.
2. He pleaded not guilty.
3. The record shows that when plea was taken, he pleaded not guilty and a Plea of not guilty entered. The court stated then proceeded to make the following orders:
The accused person to be supplied with copies of charge sheet, witness statements and all other documents.
The accused person may be released on a bond with surety of Kshs. 100,000 or a cash bail of Kshs. 50,000 plus one (1) contact person otherwise remanded in custody.
Pre-trial conference now slated for 16/4/2025 - court 2.
4. The prosecution was aggrieved by the order on bond and vide Notice of Motion dated 8/4/2025 sought orders: -
1) That this application be certified as urgent and be heard ex-parte in the first instance.
2) That this honourable court be pleased to call for and examine the record of the proceedings in Makindu Magistrate’s Court Criminal Case No. MCSO/E024 of 2025, Republic vs Edmund Makiti Tuli, for the purpose of satisfying itself as to the correctness, legality and propriety of the order granting bond to the respondent on the 3rd day of April, 2025.
3) That this honourable court be pleased to revise the order of the learned magistrate granting a bond of Kshs. 100,000 with an alternative of Kshs. 50,000 cash bail with 1 contact person to the respondent and enhance the bond terms to such terms as this honourable court deems just and appropriate, including but not limited to an increase in the cash bail/bond amount and the imposition of stricter conditions that will ensure the accused person faithfully appears in court for their trial to the end.
4) That this honourable court be pleased to issue any other or further orders as it may deem just and expedient in the circumstances.
5. The application is supported by the grounds on its face and the grounds in the supporting affidavit sworn by Derrick Kamau – the prosecution in the said matter Viz:-
1) That the Respondent, Edmund Makiti Tuli, was on the 3rd day of April, 2025, arraigned before the Makindu Magistrate’s court in Criminal Case No. MCSO/E024 of 2025 and charged with offence of defilement contrary to section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006.
2) That I was present in court when the respondent took plea and the learned Magistrate proceeded to consider the issue of bond.
3) That the prosecution raised concerns regarding the close relationship between the accused and the victim with the accused being an English teacher for the victim, and the high likelihood of interference with witnesses in the matter should the accused be released on bond or cash bail.
4) That notwithstanding the prosecution’s submissions, the learned magistrate failed to give any consideration to the issues raised by prosecution and proceeded to grant the respondent a bond of Kshs. 100,000 with an alternative of Kshs. 50,000 cash bail with 1 contact person and no other conditions attached.
5) That concerns raised by prosecution on the issue of grant of bail or bond to the respondent were not included as part of the court proceedings by the learned magistrate.
6) That I am of the considered opinion that the bond terms granted are manifestly lenient and do not pass the test of reasonableness and are glaringly too low in the circumstances of the case.
7) That the honourable court ought to have taken into account the prosecutions submissions to take judicial notice of the serious nature of the offence and its surrounding circumstances and recorded the same.
8) That I am concerned that the bail and bond terms granted are insufficient to deter the respondent from absconding and may entice the accused person into forfeiting the bond/bail amount and fleeing especially considering the potential severity of the punishment upon conviction.
9) That I am further concerned that the lenient bond terms may embolden the respondent and create a potential risk of interference with the victim and potential witnesses in this case.
10) That the imposed bail/bond terms offend public policy and interest for being disproportionate and not commensurate to the nature and seriousness of the offence in question.
11) That it is in the public interest and in the interest of justice that person accused of such serious offences are subjected to bond terms that are commensurate with the gravity of the charges they face and that ensure their attendance in court.
12) That I verily believe that the lenient bond terms granted by the learned magistrate may undermine public confidence in the administration of justice by sending the wrong message to the public that one can commit an offence and be released on easy bail and bond terms irrespective of the seriousness and nature of the alleged offence.
13) That the Honourable court erred by not ensuring that the bond/bail terms were appropriate to the offence committed which is a felony and should have taken into account the personal circumstances of the accused person.
14) That bail determination must balance the rights of the accused person with the public interest, including the rights of the victims as set out in the bail and bond policy guidelines.
6. Invoking the revision at jurisdiction of this court be deponed further
15) That I have been advised and verily believe the same to be true that this honourable court has the jurisdiction under Article 165(6) & 7 of the Constitution of Kenya 2010 as read with section 362 and 364 (1) (b)of the Criminal Procedure Code to exercise supervisory jurisdiction over subordinate courts, call for and examine the record of the proceedings of the subordinate court and revise any orders made by the subordinate court as considered appropriate to ensure the fair administration of justice.
7. The application is opposed vide the replying affidavit of Edmund Makiti Tuli – that
1) That I am informed by my advocates on record which information I verily believe to be true that the application as filed is baseless, speculative, ill-informed, frivolous, vexatious, and an abuse of the court process.
2) That I am informed by my advocates on record which information I verily believe to be true that the threshold for revision of bail/bond terms granted by the learned magistrate in Makindu SO E024 of 2025 has not been met and I urge this honourable Court to dismiss the application with costs.
3) That I am informed by my advocates on record which information that I verily believe to be true that the ultimate goal of bail/bond is not to punish the accused person rather to secure their court attendance whenever required in court.
4) That I am informed by my advocates on record which information I verily believe to be true 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 in necessary to guarantee that the accused person will appear for his or her trial. Secondly, bail or bond conditions should take into account the personal circumstances of the accused person.
5) That it is notable that since the commencement of this matter I have not violated my bail terms/bond terms neither have I absconded court sessions. I faithfully attended court on 3rd April, 2015 during the plea taking and on 16th April when the matter was coming up for mention. I am also aware that Makindu SO 024/25 is coming up for hearing on 13th August, 2025.
6) That I am not interfering with witnesses. Further to that I no longer go to the same school therefore it is not possible for me to meet with the victim or any witnesses in this matter.
7) That am informed by my advocates on record which information I verily believe to be true that it is trite law, bail/bond conditions should take into account the personal circumstances of the accused person. The circumstances of the accused also ought to have a bearing on the bail/bond terms set. It serves no purpose to recognize the right of an accused person to be released on bail, and in the same breath impose terms that are beyond the ability of the accused, which would in effect amount to taking away that right. The bail/bond orders granted by the learned magistrate in MCS)/024/25 is not manifestly lenient considering that I am a teacher on meager salary(Attached and Marked EMT -1 is a copy of pays lip)
8) That I am a breadwinner of my family, I have three school going children who are 18 years, 14 years and 7 years respectively under my care that need provision.
9) That the applicant has failed to demonstrate how the bond/bail granted to the respondent is grossly erroneous to justness, appropriateness and suitability to trial.
8. Parties filed written submissions - which I have considered.
9. The issue for determination is whether this court ought to interfere with the order of bond made of Hon. Mbicha in Makindu MCSO E024/2025
10. The right to bail is constitutional right protected under Article 49(1) (h) of the constitution which states:- an arrested person has the right,
(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
11. This is further broken down under section 123A (1) of the Criminal Procedure Code which states:-
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; (2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b) should be kept in custody for his own protection.
12. In addition we have the Judiciary Bail and Bond Policy Guidelines –which provides that 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 which include:—
(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;
(e) The need to protect the victim or victims of the crime from the accused person.
(f) The relationship between the accused person and potential witnesses. here, the courts reason that if the accused person is either related
(g) Likelihood of interfering with witnesses.
(h) Whether the accused person is a flight risk.
(i) Whether the accused person is gainfully employed.
(j) Public order, peace or security.
13. The Guidelines recognize the place of the victim of the offence in the process of determining bail. It states
Additionally, for the first time in Kenya’s history, the Constitution now recognizes and seeks to protect the rights of victims of crime. Article 50(9) requires Parliament to “enact legislation providing for the protection, rights and welfare of victims of offences.” Parliament has now enacted this legislation, in the form of the Victim Protection Act 2014. This Act seeks to recognize and give effect to the rights of victims of crime…[it] seeks to protect the dignity of victims of crime through, among other things, the provision of better information... it seeks to promote cooperation among government departments, organizations and agencies involved in working with victims of crime…in particular, this Act implicates bail decision making in two significant respects:
1) It imposes a duty on the courts to “ensure that every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken”: and
2) It gives victims of crime the right “to have their safety and that of their family considered in determining the conditions of bail and release of the offender.”
14. Evidently the Victim Protection Act provides for the views of the victim to be considered when bail is being given- and the Bail & Bond Policy Guidelines provide that the court should take into account the views/concerns of the victim. Particularly in matters related to sexual offences among others.
15. The Children Act is also clear – that a child who is a complainant of such an offence is a child in need of care and protection. The court is bound to ensure that the welfare of such a child is safeguarded pre-, during and post -trial. The Court is required to ensure that a Protection and Care is opened, the requsite report filed so that the court can give the appropriate directions.
16. These processes emanate from Article 53 of the Katiba which requires the court to act in the Best interests of the child.
17. To persuade the court to review the Hon. Magistrate’s ruling – the prosecution cited the following cases:-
a. On the issue of interference with witnesses: Republic V Joktan Mayende & 3 others [2012] KEHC 5551 (KLR) where the court in its determination noted, “In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice, undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the preamble to the Constitution of Kenya, 2010.
18. It is submitted that the nature and seriousness of the case called for more stringent bond terms to guarantee that the Respondent does not abscond court and also meet the requirements set for a court of law that bond terms be commensurate and proportionate in relation to the gravity and seriousness of the charges faces. On the proportionate and commensurate bond terms: Elizabeth Akinyi Abongo V Republic (2021) EKLR where the court emphasized on the importance of stringent bond terms while upholding the presumption of innocence of the accused person. The court found that the presumption did not mean that the trial court could not impose stringent bond terms on the accused person and where there was no guarantee that the accused would attend court in the future it was of paramount importance that bail/bond terms be enhanced to reflect the seriousness and nature of the case in question as well as reasonably guarantee that the accused person will faithfully appear in court for her trial to the end. Relying on section 123 A (1) (a) (b) of the Criminal Procedure Code it was submitted that the trial court in exercising its discretion was expected to exercise the same judiciously and within the law. The applicant argued that the trial court failed to give consideration to the general principles of international best practice in granting bail/bond as set out in the Bail and Bond policy guidelines at para 3.1 (c) (e ) (f) which provides for bail and Bond policy terms that guarantee the accused persons attends trial without fail, balance the rights of the accused persons and the interest of justice and give consideration for the rights of victims respectively.
19. For the respondent, this court was dissuaded from interfering with the decision of the subordinate court. Counsel relied on s. 362 of the criminal procedure code. On the role of this court in a matter such as this counsel cited Republic Vs James Kiarie Mutungei [2017] eKLR; where the court stated “the rationale of the High Court as a revisionary authority can be initiated by an aggrieved party or suo moto made by the court itself, to call for the record relation to the order passed or proceedings in order to satisfy itself as to the legality, propriety or correctness of the order in question.
In describing the powers of the High Court on revision he relied on the Malaysia High Court decision in Public Prosecutor v Muhari bin Mohammed Jani and another [1996] 4 LRC 728 at 734, 735 it was stated
“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice. If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion … this discretion, like all other judicial discretions ought, as far as practicable to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case.”
On the purpose of the conditions for bail/bond it was submitted that it is to ensure that the accused person will attend court at all material times and cited Republic v Lampat Letongoros & 2 others [2013] eKLR.
20. Referring to the appellate powers of this court , it was submitted that appellate courts must exercise restraint in interfering with judicial discretion and cited Mbogo vs Shah [1968] EA 93 where the Court of Appeal stated that an appellate court ought not interfere with the exercise of the discretion of the subordinate court unless it is satisfied that the exercise of the discretion is based on a misdirection in some matter, arriving at a wrong decision, or unless it is manifest from the case that the exercise of discretion resulted in injustice.
21. The court is urged to find persuasive Harish Mawjee & another V Republic [2020] eKLR, where the court considered the principles that govern the grant of bail and bond and the terms thereof and stated as follows:
“There are certain overarching principles that govern the administration of bail and bond by courts. First of all, courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if found necessary. Secondly, bond terms should not be arbitrary, but the court must consider the relevant factors affecting issuance of bond including the accused ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. ”
22. I have carefully set out the facts as presented, the legal and policy framework for the granting of bail and bond. It is not in dispute that the trial court has the discretion to grant bond.
23. The purpose of bond is to ensure that an accused person attend s court as and when required. The accused is presumed innocent until proven guilty and that is why bond must be granted unless there are compelling reasons not to. The terms are up to the discretion of the court but when certain issues are raised by the prosecution or the victim, the court is bound to demonstrate having considered the same, in arriving at its decision.
24. In this case what stands is that the record is absent of the objections by the prosecution, that the learned trial magistrate did not give any reasons for the bond granted, and no consideration was made for the safeguards of the victim’s welfare.
25. However, having carefully considered the foregoing it is clear that the learned trial magistrate did not apply his mind to the guidelines both statutory and policy in the granting of bond – in particular need to balance both the rights of the accused to bond, the rights of the victim and the public interest.
26. Considering the nature of the offence, the particulars of the charge the learned magistrate had the Constitutional and Statutory duty to demonstrate that in arriving at the orders he made considered all the factors and circumstances of the case . There is something about bond terms that creates the perception that the justice system is not taking certain offences seriously – that is the public interest – that there is the expectation that the accused will get bond but that the court will have in view the rights of the victims and the public interest. This is taken care of when the court follows the set down processes.
27. The record speaks for itself, - that the court did not take into account the submissions by the prosecution. He did not write down the said submissions, and did not take the same into consideration – he would have proceeded suo moto to seek a pre-bail report that would have brought to fore the concerns of the victim, and the duty to protect the child complainant .
28. While the granting of bond is discretionary – it is expected that the same will be judicious - I would agree with Elizabeth Akinyi Abongo V R (above) . Where, as in this case the structure of authority between the accused and the victim is as it is ; teacher vs student, taking into account the presumption of innocence the court is still obligated in considering the bond terms, to take that into account.
29. On matters bond, subordinate courts must of necessity apply the set down laws and policy guidelines when it comes to these matters, and should not act in a manner that could be viewed as injudicious when the facts and circumstances of the case are weighed in the eyes of the reasonable person.
30. Hence on the correctness, legality or propriety of the order recorded by the subordinate court. I find that the propriety of the order on bond is questionable and arrive at the conclusion that the bond terms were not appropriate - in particular the cash bail vis a vis the offence. This would be a recipe for the accused person to abscond – considering the seriousness of the offence and that it carries a minimum sentence of 15 years imprisonment should he be found guilty.
31. These bail terms must be reconsidered.
32. I order therefor that the matter be removed from the Hon Mbicha and be placed before the Head of station on the 13th August 2025 when it comes for hearing.
33. That the head of station to seek a pre bail report to be availed containing the victim impact statement.
34. And for the court to re-consider the bail terms.
35. Pending the determination of the revision of the bond terms as per the bail report, the court to exercise its discretion whether or not to cancel the accused person’s present bond terms.
36. The Deputy Registrar to ensure that the Judgment be served upon the trial court, Head of Station Makindu Law Courts and the Prosecution and Counsel for the accused person.
37. Orders accordingly.
Dated, signed and delivered via CTS this 30th July 2025
Mumbua T Matheka
Judge
Particulars are that Edmund Makiti on the 19th day of January, 2025 at Kwamatungu Village in Nzaui Sub County within Makueni County intentionality and unlawfully caused his penis to penetrate the vagina of G.K.M a child aged 15 years.
In the Alternative Charge – He was charged with indecent act with a child contrary to section 11(1) of the sexual offence Act No. 3 of 2006.
Particulars are that Edmund Makiti Tuli on 19th day of January 2015 at Kwamatungu Village in Nzaui Subcounty within Makueni County, intentionally touched the vagina of G.K.M a child aged 15 years with his penis.
2. He pleaded not guilty.
3. The record shows that when plea was taken, he pleaded not guilty and a Plea of not guilty entered. The court stated then proceeded to make the following orders:
The accused person to be supplied with copies of charge sheet, witness statements and all other documents.
The accused person may be released on a bond with surety of Kshs. 100,000 or a cash bail of Kshs. 50,000 plus one (1) contact person otherwise remanded in custody.
Pre-trial conference now slated for 16/4/2025 - court 2.
4. The prosecution was aggrieved by the order on bond and vide Notice of Motion dated 8/4/2025 sought orders: -
1) That this application be certified as urgent and be heard ex-parte in the first instance.
2) That this honourable court be pleased to call for and examine the record of the proceedings in Makindu Magistrate’s Court Criminal Case No. MCSO/E024 of 2025, Republic vs Edmund Makiti Tuli, for the purpose of satisfying itself as to the correctness, legality and propriety of the order granting bond to the respondent on the 3rd day of April, 2025.
3) That this honourable court be pleased to revise the order of the learned magistrate granting a bond of Kshs. 100,000 with an alternative of Kshs. 50,000 cash bail with 1 contact person to the respondent and enhance the bond terms to such terms as this honourable court deems just and appropriate, including but not limited to an increase in the cash bail/bond amount and the imposition of stricter conditions that will ensure the accused person faithfully appears in court for their trial to the end.
4) That this honourable court be pleased to issue any other or further orders as it may deem just and expedient in the circumstances.
5. The application is supported by the grounds on its face and the grounds in the supporting affidavit sworn by Derrick Kamau – the prosecution in the said matter Viz:-
1) That the Respondent, Edmund Makiti Tuli, was on the 3rd day of April, 2025, arraigned before the Makindu Magistrate’s court in Criminal Case No. MCSO/E024 of 2025 and charged with offence of defilement contrary to section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006.
2) That I was present in court when the respondent took plea and the learned Magistrate proceeded to consider the issue of bond.
3) That the prosecution raised concerns regarding the close relationship between the accused and the victim with the accused being an English teacher for the victim, and the high likelihood of interference with witnesses in the matter should the accused be released on bond or cash bail.
4) That notwithstanding the prosecution’s submissions, the learned magistrate failed to give any consideration to the issues raised by prosecution and proceeded to grant the respondent a bond of Kshs. 100,000 with an alternative of Kshs. 50,000 cash bail with 1 contact person and no other conditions attached.
5) That concerns raised by prosecution on the issue of grant of bail or bond to the respondent were not included as part of the court proceedings by the learned magistrate.
6) That I am of the considered opinion that the bond terms granted are manifestly lenient and do not pass the test of reasonableness and are glaringly too low in the circumstances of the case.
7) That the honourable court ought to have taken into account the prosecutions submissions to take judicial notice of the serious nature of the offence and its surrounding circumstances and recorded the same.
8) That I am concerned that the bail and bond terms granted are insufficient to deter the respondent from absconding and may entice the accused person into forfeiting the bond/bail amount and fleeing especially considering the potential severity of the punishment upon conviction.
9) That I am further concerned that the lenient bond terms may embolden the respondent and create a potential risk of interference with the victim and potential witnesses in this case.
10) That the imposed bail/bond terms offend public policy and interest for being disproportionate and not commensurate to the nature and seriousness of the offence in question.
11) That it is in the public interest and in the interest of justice that person accused of such serious offences are subjected to bond terms that are commensurate with the gravity of the charges they face and that ensure their attendance in court.
12) That I verily believe that the lenient bond terms granted by the learned magistrate may undermine public confidence in the administration of justice by sending the wrong message to the public that one can commit an offence and be released on easy bail and bond terms irrespective of the seriousness and nature of the alleged offence.
13) That the Honourable court erred by not ensuring that the bond/bail terms were appropriate to the offence committed which is a felony and should have taken into account the personal circumstances of the accused person.
14) That bail determination must balance the rights of the accused person with the public interest, including the rights of the victims as set out in the bail and bond policy guidelines.
6. Invoking the revision at jurisdiction of this court be deponed further
15) That I have been advised and verily believe the same to be true that this honourable court has the jurisdiction under Article 165(6) & 7 of the Constitution of Kenya 2010 as read with section 362 and 364 (1) (b)of the Criminal Procedure Code to exercise supervisory jurisdiction over subordinate courts, call for and examine the record of the proceedings of the subordinate court and revise any orders made by the subordinate court as considered appropriate to ensure the fair administration of justice.
7. The application is opposed vide the replying affidavit of Edmund Makiti Tuli – that
1) That I am informed by my advocates on record which information I verily believe to be true that the application as filed is baseless, speculative, ill-informed, frivolous, vexatious, and an abuse of the court process.
2) That I am informed by my advocates on record which information I verily believe to be true that the threshold for revision of bail/bond terms granted by the learned magistrate in Makindu SO E024 of 2025 has not been met and I urge this honourable Court to dismiss the application with costs.
3) That I am informed by my advocates on record which information that I verily believe to be true that the ultimate goal of bail/bond is not to punish the accused person rather to secure their court attendance whenever required in court.
4) That I am informed by my advocates on record which information I verily believe to be true 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 in necessary to guarantee that the accused person will appear for his or her trial. Secondly, bail or bond conditions should take into account the personal circumstances of the accused person.
5) That it is notable that since the commencement of this matter I have not violated my bail terms/bond terms neither have I absconded court sessions. I faithfully attended court on 3rd April, 2015 during the plea taking and on 16th April when the matter was coming up for mention. I am also aware that Makindu SO 024/25 is coming up for hearing on 13th August, 2025.
6) That I am not interfering with witnesses. Further to that I no longer go to the same school therefore it is not possible for me to meet with the victim or any witnesses in this matter.
7) That am informed by my advocates on record which information I verily believe to be true that it is trite law, bail/bond conditions should take into account the personal circumstances of the accused person. The circumstances of the accused also ought to have a bearing on the bail/bond terms set. It serves no purpose to recognize the right of an accused person to be released on bail, and in the same breath impose terms that are beyond the ability of the accused, which would in effect amount to taking away that right. The bail/bond orders granted by the learned magistrate in MCS)/024/25 is not manifestly lenient considering that I am a teacher on meager salary(Attached and Marked EMT -1 is a copy of pays lip)
8) That I am a breadwinner of my family, I have three school going children who are 18 years, 14 years and 7 years respectively under my care that need provision.
9) That the applicant has failed to demonstrate how the bond/bail granted to the respondent is grossly erroneous to justness, appropriateness and suitability to trial.
8. Parties filed written submissions - which I have considered.
9. The issue for determination is whether this court ought to interfere with the order of bond made of Hon. Mbicha in Makindu MCSO E024/2025
10. The right to bail is constitutional right protected under Article 49(1) (h) of the constitution which states:- an arrested person has the right,
(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
11. This is further broken down under section 123A (1) of the Criminal Procedure Code which states:-
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; (2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—
(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;
(b) should be kept in custody for his own protection.
12. In addition we have the Judiciary Bail and Bond Policy Guidelines –which provides that 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 which include:—
(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;
(e) The need to protect the victim or victims of the crime from the accused person.
(f) The relationship between the accused person and potential witnesses. here, the courts reason that if the accused person is either related
(g) Likelihood of interfering with witnesses.
(h) Whether the accused person is a flight risk.
(i) Whether the accused person is gainfully employed.
(j) Public order, peace or security.
13. The Guidelines recognize the place of the victim of the offence in the process of determining bail. It states
Additionally, for the first time in Kenya’s history, the Constitution now recognizes and seeks to protect the rights of victims of crime. Article 50(9) requires Parliament to “enact legislation providing for the protection, rights and welfare of victims of offences.” Parliament has now enacted this legislation, in the form of the Victim Protection Act 2014. This Act seeks to recognize and give effect to the rights of victims of crime…[it] seeks to protect the dignity of victims of crime through, among other things, the provision of better information... it seeks to promote cooperation among government departments, organizations and agencies involved in working with victims of crime…in particular, this Act implicates bail decision making in two significant respects:
1) It imposes a duty on the courts to “ensure that every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken”: and
2) It gives victims of crime the right “to have their safety and that of their family considered in determining the conditions of bail and release of the offender.”
14. Evidently the Victim Protection Act provides for the views of the victim to be considered when bail is being given- and the Bail & Bond Policy Guidelines provide that the court should take into account the views/concerns of the victim. Particularly in matters related to sexual offences among others.
15. The Children Act is also clear – that a child who is a complainant of such an offence is a child in need of care and protection. The court is bound to ensure that the welfare of such a child is safeguarded pre-, during and post -trial. The Court is required to ensure that a Protection and Care is opened, the requsite report filed so that the court can give the appropriate directions.
16. These processes emanate from Article 53 of the Katiba which requires the court to act in the Best interests of the child.
17. To persuade the court to review the Hon. Magistrate’s ruling – the prosecution cited the following cases:-
a. On the issue of interference with witnesses: Republic V Joktan Mayende & 3 others [2012] KEHC 5551 (KLR) where the court in its determination noted, “In all civilized systems of court, interference with witnesses is a highly potent ground on which the accused may be refused bail. It is a reasonable and justifiable limitation of right to liberty in law in an open and democratic society as a way of safeguarding administration of justice, undoubtedly a cardinal tenet in criminal justice, social justice and the rule of law in general as envisioned by the people of Kenya in the preamble to the Constitution of Kenya, 2010.
18. It is submitted that the nature and seriousness of the case called for more stringent bond terms to guarantee that the Respondent does not abscond court and also meet the requirements set for a court of law that bond terms be commensurate and proportionate in relation to the gravity and seriousness of the charges faces. On the proportionate and commensurate bond terms: Elizabeth Akinyi Abongo V Republic (2021) EKLR where the court emphasized on the importance of stringent bond terms while upholding the presumption of innocence of the accused person. The court found that the presumption did not mean that the trial court could not impose stringent bond terms on the accused person and where there was no guarantee that the accused would attend court in the future it was of paramount importance that bail/bond terms be enhanced to reflect the seriousness and nature of the case in question as well as reasonably guarantee that the accused person will faithfully appear in court for her trial to the end. Relying on section 123 A (1) (a) (b) of the Criminal Procedure Code it was submitted that the trial court in exercising its discretion was expected to exercise the same judiciously and within the law. The applicant argued that the trial court failed to give consideration to the general principles of international best practice in granting bail/bond as set out in the Bail and Bond policy guidelines at para 3.1 (c) (e ) (f) which provides for bail and Bond policy terms that guarantee the accused persons attends trial without fail, balance the rights of the accused persons and the interest of justice and give consideration for the rights of victims respectively.
19. For the respondent, this court was dissuaded from interfering with the decision of the subordinate court. Counsel relied on s. 362 of the criminal procedure code. On the role of this court in a matter such as this counsel cited Republic Vs James Kiarie Mutungei [2017] eKLR; where the court stated “the rationale of the High Court as a revisionary authority can be initiated by an aggrieved party or suo moto made by the court itself, to call for the record relation to the order passed or proceedings in order to satisfy itself as to the legality, propriety or correctness of the order in question.
In describing the powers of the High Court on revision he relied on the Malaysia High Court decision in Public Prosecutor v Muhari bin Mohammed Jani and another [1996] 4 LRC 728 at 734, 735 it was stated
“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice. If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion … this discretion, like all other judicial discretions ought, as far as practicable to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case.”
On the purpose of the conditions for bail/bond it was submitted that it is to ensure that the accused person will attend court at all material times and cited Republic v Lampat Letongoros & 2 others [2013] eKLR.
20. Referring to the appellate powers of this court , it was submitted that appellate courts must exercise restraint in interfering with judicial discretion and cited Mbogo vs Shah [1968] EA 93 where the Court of Appeal stated that an appellate court ought not interfere with the exercise of the discretion of the subordinate court unless it is satisfied that the exercise of the discretion is based on a misdirection in some matter, arriving at a wrong decision, or unless it is manifest from the case that the exercise of discretion resulted in injustice.
21. The court is urged to find persuasive Harish Mawjee & another V Republic [2020] eKLR, where the court considered the principles that govern the grant of bail and bond and the terms thereof and stated as follows:
“There are certain overarching principles that govern the administration of bail and bond by courts. First of all, courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if found necessary. Secondly, bond terms should not be arbitrary, but the court must consider the relevant factors affecting issuance of bond including the accused ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. ”
22. I have carefully set out the facts as presented, the legal and policy framework for the granting of bail and bond. It is not in dispute that the trial court has the discretion to grant bond.
23. The purpose of bond is to ensure that an accused person attend s court as and when required. The accused is presumed innocent until proven guilty and that is why bond must be granted unless there are compelling reasons not to. The terms are up to the discretion of the court but when certain issues are raised by the prosecution or the victim, the court is bound to demonstrate having considered the same, in arriving at its decision.
24. In this case what stands is that the record is absent of the objections by the prosecution, that the learned trial magistrate did not give any reasons for the bond granted, and no consideration was made for the safeguards of the victim’s welfare.
25. However, having carefully considered the foregoing it is clear that the learned trial magistrate did not apply his mind to the guidelines both statutory and policy in the granting of bond – in particular need to balance both the rights of the accused to bond, the rights of the victim and the public interest.
26. Considering the nature of the offence, the particulars of the charge the learned magistrate had the Constitutional and Statutory duty to demonstrate that in arriving at the orders he made considered all the factors and circumstances of the case . There is something about bond terms that creates the perception that the justice system is not taking certain offences seriously – that is the public interest – that there is the expectation that the accused will get bond but that the court will have in view the rights of the victims and the public interest. This is taken care of when the court follows the set down processes.
27. The record speaks for itself, - that the court did not take into account the submissions by the prosecution. He did not write down the said submissions, and did not take the same into consideration – he would have proceeded suo moto to seek a pre-bail report that would have brought to fore the concerns of the victim, and the duty to protect the child complainant .
28. While the granting of bond is discretionary – it is expected that the same will be judicious - I would agree with Elizabeth Akinyi Abongo V R (above) . Where, as in this case the structure of authority between the accused and the victim is as it is ; teacher vs student, taking into account the presumption of innocence the court is still obligated in considering the bond terms, to take that into account.
29. On matters bond, subordinate courts must of necessity apply the set down laws and policy guidelines when it comes to these matters, and should not act in a manner that could be viewed as injudicious when the facts and circumstances of the case are weighed in the eyes of the reasonable person.
30. Hence on the correctness, legality or propriety of the order recorded by the subordinate court. I find that the propriety of the order on bond is questionable and arrive at the conclusion that the bond terms were not appropriate - in particular the cash bail vis a vis the offence. This would be a recipe for the accused person to abscond – considering the seriousness of the offence and that it carries a minimum sentence of 15 years imprisonment should he be found guilty.
31. These bail terms must be reconsidered.
32. I order therefor that the matter be removed from the Hon Mbicha and be placed before the Head of station on the 13th August 2025 when it comes for hearing.
33. That the head of station to seek a pre bail report to be availed containing the victim impact statement.
34. And for the court to re-consider the bail terms.
35. Pending the determination of the revision of the bond terms as per the bail report, the court to exercise its discretion whether or not to cancel the accused person’s present bond terms.
36. The Deputy Registrar to ensure that the Judgment be served upon the trial court, Head of Station Makindu Law Courts and the Prosecution and Counsel for the accused person.
37. Orders accordingly.
Dated, signed and delivered via CTS this 30th July 2025
Mumbua T Matheka
Judge