'
Introduction
1. This Ruling follows twin applications by both the state dated 16th September, 2025 and the respondent, dated 25th September, 2025 respectively. First, the Director of Public Prosecutions moved the court under Articles 53 (2), 50 (1) (j), 165 (6) & (7) of the C.O.K, 2010 and Sections 362 and 364 of the CPC, cumulatively for this court to call for and examine the proceedings in Shanzu MCCR/E359/2025 Republic vs Noel Naliaka Ndinyo alias Pnnoelle alias Noelle for the purpose of satisfying itself on the legality and the propriety of the Ruling delivered on 15th September, 2025. Thereafter, that this court be pleased to review, vary and/or alter the orders and permit the Director of Public Prosecutions to grant both the Respondent and Mr. Ngare Defense Counsel on record “reasonable access” of the relevant indecent/obscene digital images and videos in CD Format that the prosecution intends to rely on during trial at the DCI Anti-Human Trafficking and Child Protection Unit Offices in Mombasa as opposed to physical supply.
2. The grounds thereto are that on 15th September, 2025, during the proceedings at the trial court, defence counsel on record therein protested that he was yet to be physically supplied with certified images and videos in CD format which images and videos depict explicit defilement and sexual abuse of a minor allegedly uploaded by the respondent herein via Snapchat platform, an act constituting both online child exploitation and child pornography.
3. That, despite opposition from the prosecution, and their contention that reasonable access as opposed to physical supply would suffice, the court without appreciation of Article 53 (2) and Article 50 (1) (j) of the C.O.K which provides for the paramount best interests of the child and right to ‘reasonable access’ to prosecutorial evidence as fair trial for an accused, respectively, proceeded to order that the defence be supplied with physical copies of the material evidence within 7 days.
4. The application is opposed by the respondent by way of a Replying Affidavit sworn by herself on 25th September, 2025. Summarily, by advice of counsel she deposed that Article 50 of the Constitution applies specifically to an accused person and not his/her counsel, and such access to evidence is what form the basis of an accused person’s instruction to his/her counsel.
5. The 2nd application, as instigated by the respondent/accused person, is brought under Articles 49 1 (h), 50 (2) (a), 165 (6) and (7) of the C.O.K, and Sections 362 and 364 (b) of the CPC, to the end that this court be pleased to review, vary, reverse and/or alter the learned magistrates orders, on two occasions denying her bail and/or bond.
6. It was the respondent’s deposition that she was arrested on 26.4.2025 and presented in court on 28.4.2025 where in a Misc. Application the DCI-AHTCPU sought and was granted orders to detain her for 14 days to finalize investigations.
7. Thereafter, she was charged with two (2) counts, for the offence of Online Child Exploitation contrary to Sec 22 (3) (c) of the Children Act, and for the Offence of Child Pornography contrary to Sec 24 (1) (c) of the Computer Misuse and Cybercrimes Act, to wit she pleaded not guilty. The prosecution through the Investigating Officer Sgt. Wycliffe Jewa objected to the applicant’s release on bond and the trial court in its Ruling dated 9.5.2025 sided with the prosecution and ordered that she remains in remand pending the hearing and determination of the case.
8. That, on 10.6.2025 the trial court certified pre-trial as complete and a hearing date slated for 15.9.2025. However, on the said hearing date the prosecution sought to amend the charge sheer and supply further documentary evidence, which acts are indicative that investigations are far from over despite whilst the accused person remains in remand, yet even the alleged identity of the child and the perpetrator remain a mystery.
9. In aid of her application for bond/bail terms, she confirmed that she is a resident of Maeni B village, in Kimilili Bungoma County, where she lives with her mother, and two (2) siblings whom together with her uncles are willing to stand in surety for her and have even been attending court throughout.
Written Submissions
10. The DPP/Applicant in their submissions dated 9th October, 2025 with regard to their primary application simply reiterated their grounds thereto, and contended that this court is duty bound under the Standard Operating Procedures (SOPs) on Online Child Sexual Exploitation and Abuse in Kenya, 2024 (OCSEA) and Article 53 (2) and Article 50 (1)(j) of the COK, to allow reasonable access as opposed to physical supply of evidence to the defence where the exhibits contain indecent images/videos.
11. In opposition of the respondent/accused person’s application, the DPP argued that it was improper for the respondent to file a cross-application in an already instigated and distinct revision application thereby introducing new facts and issues not initially considered.
12. The respondent in her submissions dated 11th October, 2025 argued that no evidence has been adduced by the prosecution in the matter to ascertain that the indeed the case is a children matter. That, from the date of detention of the respondent for investigations over allegations of uploading a video depicting a minor being sexually assaulted, the investigating officer intimated that they are in the process of trancing and rescuing the victim and apprehend the defiler however the same is yet to materialize. Therefore, it remains an allegation that the victim is a minor.
13. That, on reasonable access to evidence, the unequivocal right was directed to an accused person which access would guide his/her ability to properly instruct counsel. It therefore cannot be argued that the defense counsel herein personally refused to be served with relevant reports and access to the footage. It would lead to an absurd situation if the accused person changes counsel, as trial would severally be starting afresh to allow new counsel to consider the footage at the DCI offices. Reliance was placed on the authorities in Juma vs Republic (2007) E.A 461, Nyeri Cr. Appeal No. 74 of 2016 Richard Munene vs Republic, Machakos Cr. Revision No. 4 of 2019 Joseph Nduvi Mbuvi vs Republic.
14. On the respondent’s application for bond, she stated that the same is unopposed, she has no likelihood of interference of witness as all are DCI officers, and she has elaborately described her place of abode. Therefore, as a first offender she is entitled to bond.
Analysis and Determination
15. The revisionary power of the High Court is drawn from Article 167 (6) and (7) of the Constitution 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 not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
16. Equally, Section 362 and Section 364 of the Criminal Procedure Code, in the same breath provides as follows.
“362. 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.
364. In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
…
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
17. Before me are two (2) distinct but rival applications seeking this court’s revisionary jurisdiction on account of purportedly want of correctness, legality or propriety of the trial court’s orders in the primary suit herein.
18. Speaking of which, the DPP, being the primary applicant herein raised a preliminary issue which before I proceed to the merits of the substantive issues it is only prudent that this court dispenses with the same on priority. It is noteworthy that during these proceedings upon institution of a secondary application by the respondent this court’s directed the DPP to equally file a response to the accused person/respondent’s application to enable the cumulative consideration and determination of both matters but they failed to do so.
19. The DPP’s justification for the failure as opined in their submissions is that it was improper for the respondent to institute a cross-application herein and instead should have filed the same in a separate criminal revision matter.
20. In my view, the position is misguided. For what is worth the twin applications are borne from the same proceedings, connected not only by proximity of time but continuity of the impugned orders/decisions. Simply put, the facts are couched from the same nexus of transactions at the trial court.
21. In as much as nothing precluded the respondent from instituting a separate criminal revision application, it is not only good practice, but appropriate and ideal in the circumstances to lodge her application herein which saves much needed judicial time, considering the matter is still pending at the trial court. It would be impractical to have multiple revisionary applications running concurrently in our hallowed halls as this would cripple the substantive case at the trial court. In this instance it would follow that the respondent’s application remains unopposed.
22. This notwithstanding, it is worth mentioning that the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions in decisions meted out by subordinate courts but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person.
23. Having thus said, I shall proceed to the merits of the twin applications a deduced therein. The salient issues as raised by the rival parties are twofold:
I. Whether the prosecution should be permitted to only grant “reasonable access” of the relevant evidence (indecent and obscene digital images and videos) it intends to rely upon in trial to the defense as opposed to physically supplying the same?
24. From the onset there is no doubt that an accused person is entitled in advance to evidence which the prosecution will rely upon. The obvious reason is that being presumed innocent, he/she has a right to be able to adequately defend himself/herself. Article 50 (2) (j) of the C.O.K underpins that:
2.Every accused person has the right to a fair trial, which includes the right:
…
j. to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
25. The above provision is clear that evidence that the prosecution intends to rely upon is what must be availed to the defence. That is to say, the testimony, documents, and tangible objects that tend to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact. This must be made available to the defence.
26. The Court has respectfully noted the persuasive decision in Republic v 241569 PC Keah Nyundo alias Mrefu (2022) KEHC 2303(KLR), where the Court (L. N. Mutende J.) held as follows:
“10.According to the Constitution of Kenya, 2010, it behooves the prosecution to disclose evidence to be relied on in the course of the trial, a duty that should be discharged during pre-trial conference to enable the defence prepare for the case adequately and/or in the course of trial where the accused should be accorded time to interrogate and also have adequate time to prepare for the defence. Evidence to be relied on by the prosecution must be disclosed because it is the basis of the investigative process that results into charges being brought.”
27. What would constitute reasonable access to evidence? In my view, it ought to be in fulfillment of Article 35 of the Constitution which underpins the right to access information. Courts are enjoined that in applying the Bill of Rights they shall adopt the interpretation that most favours the enforcement of a right or fundamental freedom (See. Article 20 (3) (b) of the C.O.K).
28. It would follow that I associate myself with the case of George Ngodhe Juma, Peter Okoth Alingo and Susan Muthoni Nyoike v Attorney-General [2003] eKLR where the court interpreting Section 77 (2) (c) of the former Constitution of Kenya which is similar to Article 50 (2) (c) of the current Constitution in reference to the right of an accused to a fair hearing, which constitutes reasonable access to prosecutorial evidence, is to the end that;
“In general, it means that, an accused person shall be free from difficulty or impediment, and free more or less completely from obstruction or hindrance, in fighting a criminal charge made against him. He should not be denied something, the result of which denial will hamper, encumber, hinder, impede, inhibit, block, obstruct, frustrate, shackle, clog, handicap, chain, fetter, trammel, thwart or stall, his case and defence, or lessen and bottleneck his fair attack on the prosecution case.”
29. In the instant the applicant contends that respondent was charged with the offence of Online Child Exploitation contrary to Sec 22 (3) (c) of the Children Act, and for the Offence of Child Pornography contrary to Sec 24 (1) (c) of the Computer Misuse and Cybercrimes Act. A summary of the particulars thereto is that the on diverse dates between 20th to 23rd February, 2025 the respondent being a user of the Snapchat account with the username “pnnoelle’ and using the verified email address noellendinyo22@gmail.com knowingly and intentionally both published child pornography through a computer system and uploaded and shared a video depicting the sexual abuse of a minor an act constituting online child exploitation.
30. It is therefore the applicant’s argument that the evidence/exhibits to be relied upon constitutes indecent and obscene digital images of a minor victim, and guided by Article 53 (2) of the COK, which provides that a child’s best interests are of paramount importance in every matter concerning the child, coupled with Standard Operating Procedures (SOPs) on Online Child Sexual Exploitation and Abuse in Kenya, 2024 (OCSEA), it is only prudent that supply of the said exhibits be limited to reasonable access as opposed to physical supply of the same.
31. I have taken time to consider the SOPs on OCSEA, 2024, by the Ministry of Labour and Social Protection through the Directorate of Children Services, which document I must laud as a vital resource in addressing the complex and ever evolving issues surrounding online child sexual exploitation and abuse.
32. The SOPs defines best interest of the child to mean the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution and section 8 Children Act.
33. In the instant, the primal clauses under the SOP on OCSEA, 2024 materially necessary for this court’s appreciation are under SOP 5: Prosecution and Trial Process which clauses provide:
5.1 Purpose
To ensure the protection of children in contact with the law, the presentation of best evidence while ensuring the rights of accused persons are upheld
5.2 Scope
The prosecution counsel has a duty to make sure that the rights of the child are respected throughout the trial process and that the process is friendly to the child. A child can be an offender, a victim or a witness to a crime involving child online offences.
5.3 Principal responsibility
Director of Public Prosecutions
5.4 Procedure
5.4.1 Prosecuting online offences against children
i. Decision to charge
…
ii Alternatives to Prosecution and Trial
…
iii. Determination of age
The prosecution counsel shall:
• liaise with the investigator to ensure that proof of age of the child in contact or in conflict with the law is availed;
• If no documentary proof is availed, move the court for a medical age assessment to be conducted in line with section 229 of the Children Act, 2022.
5.4.2 Procedure in court
i. Plea Taking
…
ii. Bail and Bond
…
iii Disclosure of Evidence
The prosecution counsel liaising with the investigating officer shall:
• provides the accused person/subject or the accused person’s representative with all evidence that the prosecution intends to rely on during trial;
• prepare an inventory of all the documents supplied to the defence for presentation to court;
• take cognizance of any existing exhibits that contain indecent images and prepare an application for ‘reasonable access’ of the images as opposed to physical supply to the defence.
34. At first glance of the guidelines, it is clear that the part-procedures above are balanced in purpose, methodical and sequential.
35. For instance, the purpose of the guide in so far as prosecution and its application in the trial process is triune, to the end that the protection of the child is ensured, the best evidence is proffered, and the rights of the accused person(s) are upheld.
36. The guidelines further recognizes that the child’s involvement is not only limited as a victim, but as an offender and a witness as well. It would follow that the interpretation of the clauses should appreciate this nuances.
37. In weighing the above guidelines to the instant matter, it would follow that the sequential procedures applied herein are considerably flawed. This I say fully cognizant of Article 159 (2) (d) of the C.O.K, 2010.
38. The applicant has rightly sought to limit the supply of the exhibits herein to reasonable access as opposed to supply of physical copies as provided under clause SOP 5.4.2 (iii) above. However, there remains glaring gaps which the prosecution and their investigating compatriots are yet to fill. Of importance, the prosecution has admitted that the alleged minor victim is yet to be traced, or their identity ascertained and verified. Clause SOP 5.4.1 (iii) places a mandatory obligation (“shall”) upon the prosecution in liaison with the investigative agencies to ensure proof age of the victim. It would therefore prove questionable which criteria did the prosecution and the investigative agencies utilized to ascertain that indeed the victim is a minor whilst they are yet to trace and identify the said victim?
39. From the onset it is worth mentioning categorically that this court is not privy to the said obscene and indecent images herein, and this is no way a means to downplay the seriousness of the charges and the offences herein, but the peculiarity of offences especially within the digital space carry an array of nuances which cannot be gainsaid. This court is alive and takes judicial notice as a matter of public notoriety that we are in the era artificial intelligence and ‘deep fakes’ where digital images and videos are manipulated to replicate real-life scenarios and people. Thus, it is of utmost importance to ensure a thorough and methodical investigation as the SOPs on OCSEA, 2024 recommends.
40. In fact, under SOP 4: Investigation of OCSEA the guidelines recommends that law enforcement personnel undertake prompt, professional, and effective investigative procedures from receiving the report and complaints, commencing investigations by gathering information, identifying possible witnesses and victims, and defining the scope of the investigation, examining the crime scene, arresting the suspects, and thereby forwarding the file to the prosecution to prefer charges thereto. It is not lost to this court that the above procedures are easier said than done, considering that at times valuable intel and material evidence may be discovered the course of trial, but this cannot be presumed to the detriment of an accused person. The trite position abides that the burden of proof remains consistently with the prosecution whilst the accused person’s presumption of innocence is fortified until convicted by proof beyond reasonable doubt.
41. It is thus this court’s view, that against the backdrop that the alleged victim has neither been traced, identified, or age ascertained, the provisos under clause SOP 5.4.2 (iii) on limited disclosure of evidence cannot crystalize. It would be a travesty of justice to curtail the accused person’s fundamental right to fair trial on the pretext on unverified and unascertained information.
II. Whether the respondent is entitled to bail/bond?
42. As earlier stated, the application by the respondent to be admitted to bail is unopposed.
43. Article 50(2) (a) of the Constitution, 2010 provides that:
“Every Accused person has the right to a fair trial which includes the right to be presumed innocent until the contrary is proved”.
44. Pursuant to the presumption of innocence until proven guilty, Article 49(1)(h) states that:
An accused 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.
45. The compelling reasons are espoused in Section 123A of the Criminal Procedure Code which gives the parameters for the grant of the right to bail as follows:
(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 fulfilment 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.
46. Further, the Judiciary’s Bail and Bond Policy Guidelines, March 2015 at page 25 sets out the judicial policy on bail as follows:
“The following procedures should apply to the bail hearing:
(a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:
a. That the accused person is likely to fail to attend court proceedings; or
b. That the accused person is likely to commit, or abet the commission of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.
47. At least one or more of the above grounds ought to be proved to the satisfaction of the court. Mere allegations or possibility is not enough. It is worth reiterating that applicants have a constitutional to bail/bond unless there are compelling reasons why they should not. It would follow that the sole onus rests on the prosecution to avail credible reasons to that effect.
48. The perceived seriousness of the offence and the sentence in my view can never be a compelling reason to deny an Accused Person the constitutional right to bail. Though the Judiciary Bond and Bail Policy lists the seriousness of the offence as a tenet for consideration, courts must not lose sight of the fact that Article 49(i)(h) grants an Accused the right to bail irrespective of the seriousness and the nature of the offence bolstered that he/she is still guaranteed the presumption of innocence until proven guilty.
49. In this instance, no opposition to the application was proffered by the prosecution. This notwithstanding, it does not mean that the respondent is bequeathed a ‘get-out-of-jail free card’. I have perused the justification of the trial court’s denial of the respondent’s admission to bond/bail terms was anchored that the respondent failed to justify her permanent place of abode.
50. However, in this instance the respondent confirmed that she is a resident of Maeni B village, in Kimilili Bungoma County, where she lives with her mother, and two (2) siblings whom together with her uncles are willing to stand in surety for her.
51. In the premise, I do not find any compelling reason proved to warrant denial of the Accused Person’s constitutional right to bail.
52. From the entirety of the foregoing, the applicant’s N.O.M dated 16th September, 2025 is hereby dismissed. Consequently, the respondent’s application dated 25th September, 2025 succeeds to the end that the trial court’s decision thereto is hereby reviewed and the respondent admitted to bail/bond terms as follows:
A. The respondent is granted a bond of Kshs.500,000 of a fixed asset with two(2) sureties of a similar amount.
B. The respondent is directed to provide two (2) contact persons who are adult blood relatives.
C. That upon release, the investigating office shall, with the assistance of the accused visit her residence of Maeni B village, in Kimilili Bungoma County with a view of identifying her place of aboard, as directed and facilitated by the trial court.
D. The respondent shall report to the investigating officer once a month until the conclusion of the trial.
E. The respondent shall not to leave the jurisdiction of the trial court without prior order by the said court, and shall attend all court sessions when and if so required.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this……24...day of…..OCTOBER…2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)....................... MR NGIRI HOLDING BRIEF FOR MR MBOTE
FOR THE RESPONDENT.............................MR NGARI
COURT ASSISTANT...................................BEBORA MWAKA
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Introduction
1. This Ruling follows twin applications by both the state dated 16th September, 2025 and the respondent, dated 25th September, 2025 respectively. First, the Director of Public Prosecutions moved the court under Articles 53 (2), 50 (1) (j), 165 (6) & (7) of the C.O.K, 2010 and Sections 362 and 364 of the CPC, cumulatively for this court to call for and examine the proceedings in Shanzu MCCR/E359/2025 Republic vs Noel Naliaka Ndinyo alias Pnnoelle alias Noelle for the purpose of satisfying itself on the legality and the propriety of the Ruling delivered on 15th September, 2025. Thereafter, that this court be pleased to review, vary and/or alter the orders and permit the Director of Public Prosecutions to grant both the Respondent and Mr. Ngare Defense Counsel on record “reasonable access” of the relevant indecent/obscene digital images and videos in CD Format that the prosecution intends to rely on during trial at the DCI Anti-Human Trafficking and Child Protection Unit Offices in Mombasa as opposed to physical supply.
2. The grounds thereto are that on 15th September, 2025, during the proceedings at the trial court, defence counsel on record therein protested that he was yet to be physically supplied with certified images and videos in CD format which images and videos depict explicit defilement and sexual abuse of a minor allegedly uploaded by the respondent herein via Snapchat platform, an act constituting both online child exploitation and child pornography.
3. That, despite opposition from the prosecution, and their contention that reasonable access as opposed to physical supply would suffice, the court without appreciation of Article 53 (2) and Article 50 (1) (j) of the C.O.K which provides for the paramount best interests of the child and right to ‘reasonable access’ to prosecutorial evidence as fair trial for an accused, respectively, proceeded to order that the defence be supplied with physical copies of the material evidence within 7 days.
4. The application is opposed by the respondent by way of a Replying Affidavit sworn by herself on 25th September, 2025. Summarily, by advice of counsel she deposed that Article 50 of the Constitution applies specifically to an accused person and not his/her counsel, and such access to evidence is what form the basis of an accused person’s instruction to his/her counsel.
5. The 2nd application, as instigated by the respondent/accused person, is brought under Articles 49 1 (h), 50 (2) (a), 165 (6) and (7) of the C.O.K, and Sections 362 and 364 (b) of the CPC, to the end that this court be pleased to review, vary, reverse and/or alter the learned magistrates orders, on two occasions denying her bail and/or bond.
6. It was the respondent’s deposition that she was arrested on 26.4.2025 and presented in court on 28.4.2025 where in a Misc. Application the DCI-AHTCPU sought and was granted orders to detain her for 14 days to finalize investigations.
7. Thereafter, she was charged with two (2) counts, for the offence of Online Child Exploitation contrary to Sec 22 (3) (c) of the Children Act, and for the Offence of Child Pornography contrary to Sec 24 (1) (c) of the Computer Misuse and Cybercrimes Act, to wit she pleaded not guilty. The prosecution through the Investigating Officer Sgt. Wycliffe Jewa objected to the applicant’s release on bond and the trial court in its Ruling dated 9.5.2025 sided with the prosecution and ordered that she remains in remand pending the hearing and determination of the case.
8. That, on 10.6.2025 the trial court certified pre-trial as complete and a hearing date slated for 15.9.2025. However, on the said hearing date the prosecution sought to amend the charge sheer and supply further documentary evidence, which acts are indicative that investigations are far from over despite whilst the accused person remains in remand, yet even the alleged identity of the child and the perpetrator remain a mystery.
9. In aid of her application for bond/bail terms, she confirmed that she is a resident of Maeni B village, in Kimilili Bungoma County, where she lives with her mother, and two (2) siblings whom together with her uncles are willing to stand in surety for her and have even been attending court throughout.
Written Submissions
10. The DPP/Applicant in their submissions dated 9th October, 2025 with regard to their primary application simply reiterated their grounds thereto, and contended that this court is duty bound under the Standard Operating Procedures (SOPs) on Online Child Sexual Exploitation and Abuse in Kenya, 2024 (OCSEA) and Article 53 (2) and Article 50 (1)(j) of the COK, to allow reasonable access as opposed to physical supply of evidence to the defence where the exhibits contain indecent images/videos.
11. In opposition of the respondent/accused person’s application, the DPP argued that it was improper for the respondent to file a cross-application in an already instigated and distinct revision application thereby introducing new facts and issues not initially considered.
12. The respondent in her submissions dated 11th October, 2025 argued that no evidence has been adduced by the prosecution in the matter to ascertain that the indeed the case is a children matter. That, from the date of detention of the respondent for investigations over allegations of uploading a video depicting a minor being sexually assaulted, the investigating officer intimated that they are in the process of trancing and rescuing the victim and apprehend the defiler however the same is yet to materialize. Therefore, it remains an allegation that the victim is a minor.
13. That, on reasonable access to evidence, the unequivocal right was directed to an accused person which access would guide his/her ability to properly instruct counsel. It therefore cannot be argued that the defense counsel herein personally refused to be served with relevant reports and access to the footage. It would lead to an absurd situation if the accused person changes counsel, as trial would severally be starting afresh to allow new counsel to consider the footage at the DCI offices. Reliance was placed on the authorities in Juma vs Republic (2007) E.A 461, Nyeri Cr. Appeal No. 74 of 2016 Richard Munene vs Republic, Machakos Cr. Revision No. 4 of 2019 Joseph Nduvi Mbuvi vs Republic.
14. On the respondent’s application for bond, she stated that the same is unopposed, she has no likelihood of interference of witness as all are DCI officers, and she has elaborately described her place of abode. Therefore, as a first offender she is entitled to bond.
Analysis and Determination
15. The revisionary power of the High Court is drawn from Article 167 (6) and (7) of the Constitution 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 not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
16. Equally, Section 362 and Section 364 of the Criminal Procedure Code, in the same breath provides as follows.
“362. 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.
364. In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
…
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
17. Before me are two (2) distinct but rival applications seeking this court’s revisionary jurisdiction on account of purportedly want of correctness, legality or propriety of the trial court’s orders in the primary suit herein.
18. Speaking of which, the DPP, being the primary applicant herein raised a preliminary issue which before I proceed to the merits of the substantive issues it is only prudent that this court dispenses with the same on priority. It is noteworthy that during these proceedings upon institution of a secondary application by the respondent this court’s directed the DPP to equally file a response to the accused person/respondent’s application to enable the cumulative consideration and determination of both matters but they failed to do so.
19. The DPP’s justification for the failure as opined in their submissions is that it was improper for the respondent to institute a cross-application herein and instead should have filed the same in a separate criminal revision matter.
20. In my view, the position is misguided. For what is worth the twin applications are borne from the same proceedings, connected not only by proximity of time but continuity of the impugned orders/decisions. Simply put, the facts are couched from the same nexus of transactions at the trial court.
21. In as much as nothing precluded the respondent from instituting a separate criminal revision application, it is not only good practice, but appropriate and ideal in the circumstances to lodge her application herein which saves much needed judicial time, considering the matter is still pending at the trial court. It would be impractical to have multiple revisionary applications running concurrently in our hallowed halls as this would cripple the substantive case at the trial court. In this instance it would follow that the respondent’s application remains unopposed.
22. This notwithstanding, it is worth mentioning that the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions in decisions meted out by subordinate courts but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person.
23. Having thus said, I shall proceed to the merits of the twin applications a deduced therein. The salient issues as raised by the rival parties are twofold:
I. Whether the prosecution should be permitted to only grant “reasonable access” of the relevant evidence (indecent and obscene digital images and videos) it intends to rely upon in trial to the defense as opposed to physically supplying the same?
24. From the onset there is no doubt that an accused person is entitled in advance to evidence which the prosecution will rely upon. The obvious reason is that being presumed innocent, he/she has a right to be able to adequately defend himself/herself. Article 50 (2) (j) of the C.O.K underpins that:
2.Every accused person has the right to a fair trial, which includes the right:
…
j. to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
25. The above provision is clear that evidence that the prosecution intends to rely upon is what must be availed to the defence. That is to say, the testimony, documents, and tangible objects that tend to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact. This must be made available to the defence.
26. The Court has respectfully noted the persuasive decision in Republic v 241569 PC Keah Nyundo alias Mrefu (2022) KEHC 2303(KLR), where the Court (L. N. Mutende J.) held as follows:
“10.According to the Constitution of Kenya, 2010, it behooves the prosecution to disclose evidence to be relied on in the course of the trial, a duty that should be discharged during pre-trial conference to enable the defence prepare for the case adequately and/or in the course of trial where the accused should be accorded time to interrogate and also have adequate time to prepare for the defence. Evidence to be relied on by the prosecution must be disclosed because it is the basis of the investigative process that results into charges being brought.”
27. What would constitute reasonable access to evidence? In my view, it ought to be in fulfillment of Article 35 of the Constitution which underpins the right to access information. Courts are enjoined that in applying the Bill of Rights they shall adopt the interpretation that most favours the enforcement of a right or fundamental freedom (See. Article 20 (3) (b) of the C.O.K).
28. It would follow that I associate myself with the case of George Ngodhe Juma, Peter Okoth Alingo and Susan Muthoni Nyoike v Attorney-General [2003] eKLR where the court interpreting Section 77 (2) (c) of the former Constitution of Kenya which is similar to Article 50 (2) (c) of the current Constitution in reference to the right of an accused to a fair hearing, which constitutes reasonable access to prosecutorial evidence, is to the end that;
“In general, it means that, an accused person shall be free from difficulty or impediment, and free more or less completely from obstruction or hindrance, in fighting a criminal charge made against him. He should not be denied something, the result of which denial will hamper, encumber, hinder, impede, inhibit, block, obstruct, frustrate, shackle, clog, handicap, chain, fetter, trammel, thwart or stall, his case and defence, or lessen and bottleneck his fair attack on the prosecution case.”
29. In the instant the applicant contends that respondent was charged with the offence of Online Child Exploitation contrary to Sec 22 (3) (c) of the Children Act, and for the Offence of Child Pornography contrary to Sec 24 (1) (c) of the Computer Misuse and Cybercrimes Act. A summary of the particulars thereto is that the on diverse dates between 20th to 23rd February, 2025 the respondent being a user of the Snapchat account with the username “pnnoelle’ and using the verified email address noellendinyo22@gmail.com knowingly and intentionally both published child pornography through a computer system and uploaded and shared a video depicting the sexual abuse of a minor an act constituting online child exploitation.
30. It is therefore the applicant’s argument that the evidence/exhibits to be relied upon constitutes indecent and obscene digital images of a minor victim, and guided by Article 53 (2) of the COK, which provides that a child’s best interests are of paramount importance in every matter concerning the child, coupled with Standard Operating Procedures (SOPs) on Online Child Sexual Exploitation and Abuse in Kenya, 2024 (OCSEA), it is only prudent that supply of the said exhibits be limited to reasonable access as opposed to physical supply of the same.
31. I have taken time to consider the SOPs on OCSEA, 2024, by the Ministry of Labour and Social Protection through the Directorate of Children Services, which document I must laud as a vital resource in addressing the complex and ever evolving issues surrounding online child sexual exploitation and abuse.
32. The SOPs defines best interest of the child to mean the principles that prime the child’s right to survival, protection, participation and development above other considerations and includes the rights contemplated under Article 53 (1) of the Constitution and section 8 Children Act.
33. In the instant, the primal clauses under the SOP on OCSEA, 2024 materially necessary for this court’s appreciation are under SOP 5: Prosecution and Trial Process which clauses provide:
5.1 Purpose
To ensure the protection of children in contact with the law, the presentation of best evidence while ensuring the rights of accused persons are upheld
5.2 Scope
The prosecution counsel has a duty to make sure that the rights of the child are respected throughout the trial process and that the process is friendly to the child. A child can be an offender, a victim or a witness to a crime involving child online offences.
5.3 Principal responsibility
Director of Public Prosecutions
5.4 Procedure
5.4.1 Prosecuting online offences against children
i. Decision to charge
…
ii Alternatives to Prosecution and Trial
…
iii. Determination of age
The prosecution counsel shall:
• liaise with the investigator to ensure that proof of age of the child in contact or in conflict with the law is availed;
• If no documentary proof is availed, move the court for a medical age assessment to be conducted in line with section 229 of the Children Act, 2022.
5.4.2 Procedure in court
i. Plea Taking
…
ii. Bail and Bond
…
iii Disclosure of Evidence
The prosecution counsel liaising with the investigating officer shall:
• provides the accused person/subject or the accused person’s representative with all evidence that the prosecution intends to rely on during trial;
• prepare an inventory of all the documents supplied to the defence for presentation to court;
• take cognizance of any existing exhibits that contain indecent images and prepare an application for ‘reasonable access’ of the images as opposed to physical supply to the defence.
34. At first glance of the guidelines, it is clear that the part-procedures above are balanced in purpose, methodical and sequential.
35. For instance, the purpose of the guide in so far as prosecution and its application in the trial process is triune, to the end that the protection of the child is ensured, the best evidence is proffered, and the rights of the accused person(s) are upheld.
36. The guidelines further recognizes that the child’s involvement is not only limited as a victim, but as an offender and a witness as well. It would follow that the interpretation of the clauses should appreciate this nuances.
37. In weighing the above guidelines to the instant matter, it would follow that the sequential procedures applied herein are considerably flawed. This I say fully cognizant of Article 159 (2) (d) of the C.O.K, 2010.
38. The applicant has rightly sought to limit the supply of the exhibits herein to reasonable access as opposed to supply of physical copies as provided under clause SOP 5.4.2 (iii) above. However, there remains glaring gaps which the prosecution and their investigating compatriots are yet to fill. Of importance, the prosecution has admitted that the alleged minor victim is yet to be traced, or their identity ascertained and verified. Clause SOP 5.4.1 (iii) places a mandatory obligation (“shall”) upon the prosecution in liaison with the investigative agencies to ensure proof age of the victim. It would therefore prove questionable which criteria did the prosecution and the investigative agencies utilized to ascertain that indeed the victim is a minor whilst they are yet to trace and identify the said victim?
39. From the onset it is worth mentioning categorically that this court is not privy to the said obscene and indecent images herein, and this is no way a means to downplay the seriousness of the charges and the offences herein, but the peculiarity of offences especially within the digital space carry an array of nuances which cannot be gainsaid. This court is alive and takes judicial notice as a matter of public notoriety that we are in the era artificial intelligence and ‘deep fakes’ where digital images and videos are manipulated to replicate real-life scenarios and people. Thus, it is of utmost importance to ensure a thorough and methodical investigation as the SOPs on OCSEA, 2024 recommends.
40. In fact, under SOP 4: Investigation of OCSEA the guidelines recommends that law enforcement personnel undertake prompt, professional, and effective investigative procedures from receiving the report and complaints, commencing investigations by gathering information, identifying possible witnesses and victims, and defining the scope of the investigation, examining the crime scene, arresting the suspects, and thereby forwarding the file to the prosecution to prefer charges thereto. It is not lost to this court that the above procedures are easier said than done, considering that at times valuable intel and material evidence may be discovered the course of trial, but this cannot be presumed to the detriment of an accused person. The trite position abides that the burden of proof remains consistently with the prosecution whilst the accused person’s presumption of innocence is fortified until convicted by proof beyond reasonable doubt.
41. It is thus this court’s view, that against the backdrop that the alleged victim has neither been traced, identified, or age ascertained, the provisos under clause SOP 5.4.2 (iii) on limited disclosure of evidence cannot crystalize. It would be a travesty of justice to curtail the accused person’s fundamental right to fair trial on the pretext on unverified and unascertained information.
II. Whether the respondent is entitled to bail/bond?
42. As earlier stated, the application by the respondent to be admitted to bail is unopposed.
43. Article 50(2) (a) of the Constitution, 2010 provides that:
“Every Accused person has the right to a fair trial which includes the right to be presumed innocent until the contrary is proved”.
44. Pursuant to the presumption of innocence until proven guilty, Article 49(1)(h) states that:
An accused 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.
45. The compelling reasons are espoused in Section 123A of the Criminal Procedure Code which gives the parameters for the grant of the right to bail as follows:
(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 fulfilment 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.
46. Further, the Judiciary’s Bail and Bond Policy Guidelines, March 2015 at page 25 sets out the judicial policy on bail as follows:
“The following procedures should apply to the bail hearing:
(a) The Prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail, including the following:
a. That the accused person is likely to fail to attend court proceedings; or
b. That the accused person is likely to commit, or abet the commission of, a serious offence; or
c. That the exception to the right to bail stipulated under Section 123A of the Criminal Procedure Code is applicable in the circumstances; or
d. That the accused person is likely to endanger the safety of victims, individuals or the public; or
e. That the accused person is likely to interfere with witnesses or evidence; or
f. That the accused person is likely to endanger national security; or
g. That it is in the public interest to detain the accused person in custody.
47. At least one or more of the above grounds ought to be proved to the satisfaction of the court. Mere allegations or possibility is not enough. It is worth reiterating that applicants have a constitutional to bail/bond unless there are compelling reasons why they should not. It would follow that the sole onus rests on the prosecution to avail credible reasons to that effect.
48. The perceived seriousness of the offence and the sentence in my view can never be a compelling reason to deny an Accused Person the constitutional right to bail. Though the Judiciary Bond and Bail Policy lists the seriousness of the offence as a tenet for consideration, courts must not lose sight of the fact that Article 49(i)(h) grants an Accused the right to bail irrespective of the seriousness and the nature of the offence bolstered that he/she is still guaranteed the presumption of innocence until proven guilty.
49. In this instance, no opposition to the application was proffered by the prosecution. This notwithstanding, it does not mean that the respondent is bequeathed a ‘get-out-of-jail free card’. I have perused the justification of the trial court’s denial of the respondent’s admission to bond/bail terms was anchored that the respondent failed to justify her permanent place of abode.
50. However, in this instance the respondent confirmed that she is a resident of Maeni B village, in Kimilili Bungoma County, where she lives with her mother, and two (2) siblings whom together with her uncles are willing to stand in surety for her.
51. In the premise, I do not find any compelling reason proved to warrant denial of the Accused Person’s constitutional right to bail.
52. From the entirety of the foregoing, the applicant’s N.O.M dated 16th September, 2025 is hereby dismissed. Consequently, the respondent’s application dated 25th September, 2025 succeeds to the end that the trial court’s decision thereto is hereby reviewed and the respondent admitted to bail/bond terms as follows:
A. The respondent is granted a bond of Kshs.500,000 of a fixed asset with two(2) sureties of a similar amount.
B. The respondent is directed to provide two (2) contact persons who are adult blood relatives.
C. That upon release, the investigating office shall, with the assistance of the accused visit her residence of Maeni B village, in Kimilili Bungoma County with a view of identifying her place of aboard, as directed and facilitated by the trial court.
D. The respondent shall report to the investigating officer once a month until the conclusion of the trial.
E. The respondent shall not to leave the jurisdiction of the trial court without prior order by the said court, and shall attend all court sessions when and if so required.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this……24...day of…..OCTOBER…2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)....................... MR NGIRI HOLDING BRIEF FOR MR MBOTE
FOR THE RESPONDENT.............................MR NGARI
COURT ASSISTANT...................................BEBORA MWAKA
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