'
The applicant is an accused person in Milimani Chief Magistrates Court Criminal Case Number E261 of 2025 Republic Vs Richard Githinji Wambugu and Mary Wangui Gichui.
The applicant was denied bail on 15 th may 2025 on the ground that he was a flight risk and that he had no known fixed abode. The applicant renewed his bail application on the 19 th June 2025 but again the court declined to grant bail vide a ruling delivered on 17 th July 2025.
The applicant aggrieved by the decision of the trial court approached this court by way of a Chamber Summons expressed to be brought under Section123 of the Criminal Procedure Code, Article 49 (1) (h), 50 ,165(3) of the Constitution and all other enabling provisions of the law seeking the following ORDERS;-
THAT service of this Application be dispensed with in the first instance . (spent )
THAT the court be pleased to hear this matter during the Vacation (spent ).
THAT the Honourable court be pleased to grant bail/bond to the
applicant .
THAT the Honourable court be pleased to make other orders as the ends of justice may require.
The applicant anchored the application on the following grounds:-
a) THAT the Applicant/Accused was denied bail/bond on the 15th day of May 2025.
(b) THAT the circumstances of the Applicant have changed and worthy of consideration
(c) THAT the Applicant/Accused continues to in remand prison custody.
The application was supported by an affidavit sworn by the applicants counsel Mr. Stanley Kang’ahi who deposed as follows;-
THAT he is an Advocate of the High Court of Kenya having conduct
of the case on behalf of the Applicant
THAT he is familiar with the facts of this case and has authority to
swear this Affidavit.
THAT the Applicant/Accused person was charged with the offence
of Conspiracy to defraud contrary to section317 of the penal code
before the Chief Magistrates Court Nairobi Milimani Criminal Case
No. E261 of 2025.
THAT the Applicant/Accused was denied bail bond and is in custody
on a pre-trial detention.
THAT during the hearing of bail bond several issues were not
presented and neither were they canvassed, which if, they had been
presented the trial court, the court would have considered to grant bail.
THAT information given to the court by counsel on record for the accused at the time, of plea was inaccurate and made without consultation with the accused.
THAT the applicant has been in union with one Rose Kanini with
whom they have stayed with at Membley Estate under tenancy lease
dated 15th July 2023 and which lease continues to subsist. (annexed
and marked SK-I is a copy of the lease Agreement)
THAT of the union they have two issues namely Liana Nyambura
Githinji aged Four (4) years, Anaya Nyambura Githinji aged One (1)
year (annexed and marked SK-ll is a copy of the birth Notification
certificates.)
THAT the applicant and his family have a fixed abode at Membley
Estate within Nairobi county hence has strong ties within the republic.
THAT am informed by my client the Applicant that this information
was never previously placed before the courts for consideration.
THAT the information that was presented previously before court by
counsel watching brief for the complainant was misleading and in
THAT the Applicant health condition has continued to deteriorate
while in remand custody and that for his wellbeing and continued
recovery would best be served if he received treatment out of
remand,
THAT I am informed by the applicant that they are willing and ready
to abide by any reasonable bail bond terms if granted and any further
conditions that the court may deem necessary so to impose.
THAT I further verily believe that this Honorable Court has powers
in both its original and inherent jurisdiction to consider and grant bail
bond to the applicant.
THAT I swear this Affidavit on behalf of the Applicant/ Accused
person who is presently in custody and what is deponed to herein is
true to the best of my knowledge, information and belief save where
otherwise stated.
The applicants case simply put is that he has a fixed abode and that the advocate who appeared for him in the trial court failed in making that representation clearly to court thus resulting in the denial of bail. In the oral argument by Mr. Kang’ahi for the accused, counsel urged this court should consider that the advocate’s failure should not be visited on his client.
This court has been moved to exercise its supervisory jurisdiction over the decision of the lower court. The scope of revisionary powers of this court is limited to determining whether a decision is correct, proper and legal is found in Constitutional and statutory provisions.
The Oxford English Dictionary Vol. VIII defines the word propriety to mean fitness, appropriateness suitability, conformity with requirements, rule of principle rightness, accuracy, correctness, justness.
The depth of revisional jurisdiction of the high Court was set out by the Court of appeal in which cited the case of Sriraja Lakshmi Dyeing Works vs. Pangaswamy Chettair [1980] 4SCC 259 where the Supreme Court of India elucidated the principles as follows: -
“The conference of revisional jurisdiction is generally for the purpose of keeping tribunal subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statues is always included in appellate jurisdiction but not vice versa. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. The dominal ideal conveyed by the incorporation of the words ‘to satisfy itself’ under section 25 read (which has similar provisions with Kenya’s section 362 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya) is essentially a power of superintendence. The scope of the revisional powers of the high Court where the high Court is required to be satisfied that the decision is according to law as to the legality and propriety of the order under revision, is quite obviously a much wider jurisdiction. That jurisdiction enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional Court is not a second Court of appeal (emphasis supplied).”
The court in reviewing the decision once satisfied that the decision is incorrect should not hesitate to reverse the same and in place therefor make appropriate orders.
In the instant matter this court is to examine whether the prosecution presented material that sufficiently established compelling reasons to justify the denial of bail. The standard of proof of compelling reasons being on a balance of probabilities.
If the court finds that the reasons advanced do not meet the threshold of compelling reasons, then the court would proceed to quash the decision declining to grant bail and in place therefor order the release of the applicant on bail.
In Mukuru v Republic (Criminal Revision E149 of 2023) [2024] KEHC 3764 (KLR) (18 April 2024) (Ruling) LW Gitari J examining the supervisory jurisdiction of the High Court stated;-
“This supervisory jurisdiction is expounded unclear section 362 and 364 of the Criminal Procedure Code, (supra). In a persuasive decision by Justice Odunga (as he then was) in Joseph Nduvi Mbuvi v Republic (2019) eKLR, the Judge stated:-
“In my considered view the object of revisional jurisdiction of the High Court is to enable the High Court in appropriate cases whether during the pendency of the proceedings in the sub-ordinate courts or at the conclusion of the proceeding to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing should be proceeded with. In other words, the High Court revisionary jurisdiction includes ensuring that where the proceedings in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”
The focus of the court therefore would be to examine the regularity of the proceedings and give appropriate directions or orders. The courts have over time examined what amounts to compelling reasons to warrant the denial of bail. The decision of the lower court would thus be weighed against settled precedent on compelling reasons and see whether the test was met before the trial court could properly exercise its discretion to deny bail.
In JONATHAN KYALO MUTUKU VS REP. 2021 KEHC 6564 the court stated the following in regard to what amounts to compelling reasons;-
‘’The Constitution however has not identified what qualifies under the term “compelling reasons”. The ordinary meaning according to
Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain
meaning it is apparent that the court would consider any fact or circumstances brought to its attention by the prosecution which would
convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court
would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the
accused will attend trial.
11. It is true that the right to bail is not absolute and where there are compelling reasons the said right may be restricted. Nevertheless, since
the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.
What the compelling reasons are, however, depend on the circumstances of each case and these circumstances are to be considered cumulatively and not in isolation. The mere fact therefore that the offence with which an accused is charged carries a serious sentence is however not necessarily a reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond appearing for trial.
Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend the trial. The imposition of terms of the bail if necessary, must similarly be for the purposes of ensuring the attendance of the accused at the
trial and ought not to be based solely on the sentence that the accused stands to serve if convicted. It is therefore my view that the discretion
to grant bail and set the conditions rests with the court. In exercising its discretion, the court must seek to strike a balance between protecting
the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of
justice, the court will lean in favour of liberty and grant bail where possible, provided the interests of justice will not be prejudiced by this.
Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of her release.
The primary consideration in deciding whether or not to grant bail should be whether the accused person would eventually return to court once released on bail. The moment that doubt is cleared in the mind of the court bail orders should flow for that is the spirit of Article 49(1) (h) of the Constitution.
The framers of our constitution in making all offences bailable in Kenya had witnessed how the right to liberty would be whimsically curtailed by the wielders of power in the authoritarian one -party state. The intention was to make a complete departure from the dark chapter of our human rights history and walk into the new found socially transformative chapter in Kenya where human rights are considered inherent entitlements to all persons as opposed to charitable gifts of the state to its citizens thus the express Constitutional provision under Article 19. The denial of bail must therefore be justifiable and in circumstances that meet the compelling reasons test.
In S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August
2017) , the Court held that:
“The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of
the following grounds are established where there is a likelihood that the accused, if he or she were released on bail, will
endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or
not stand his or her trial or appear to receive sentence; or
attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system… the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; the strength of the case for the prosecution and the corresponding incentive of the accused to flee; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account…In considering any question the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely (i) the period for which the accused has already been in custody since his or her arrest; (ii) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; (iii) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; (iv) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; (v) the state of health of the accused; (vi)
any other factor which in the opinion of the court should be taken into account… In assessing the risk of abscondment, the established approach is for the court to assess this risk by first assessing the likely degree of temptation to abscond which may face the accused. To do this, one must consider the gravity of the charge because quite clearly, the more serious the charge, the more severe the sentence is likely to be. In S v Nichas 1977 (1) SA 257 (C) it was observed that if there is a likelihood of heavy sentences being imposed the accused will be tempted to abscond. Similar sentiments were stated in S v Hudson 1980 (4) SA 145 (D) 146 in the following terms;
“The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.”
In other words, the possibility of a severe sentence enhances any possible inducement to the accused to flee. See also Aitken v AG 1992 (2) ZLR 249 and Norman Mapfumo vs. The State HH 63/2008… The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.”
17.The Bail and bond decision-making should be guided by the following principles, which are derived from international best practices:
(a) The right of accused person to be presumed innocent. Every accused person shall be presumed innocent (Article 50(2) of the Constitution). This is the primary rationale for the requirement of the Constitution that an arrested person has the right to be released on bail or bond. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible.
The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.
(b) Accused Person’s Right to Liberty. Every accused person has the right to liberty. As a general rule, therefore, every accused person should not be detained, but should be released subject to his/her guarantee to appear for trial. Pretrial detention should therefore be a measure of last resort, and the criminal justice institutions should make every reasonable effort to avoid pretrial detention. (emphasis added).
(c) Accused’s obligation to attend trial. Bail and bond provide guarantees that accused persons will attend trial. They are securities that aim to procure the release of an accused person from legal custody together with an undertaking that he or she will appear for trial.
(d) Right to Reasonable Bail and Bond Terms: Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.
The ultimate goal of bail or bond is to guarantee that an accused person attends his or her trial, it is important to underscore that Article 49(1) of the Constitution makes it clear that the courts retain the discretion to decide whether or not to grant bail. The discretion must however be exercised judiciously. The courts must always bear in mind the duty imposed on them under Article 20 (3) (a) and (b) to develop the law to the extent that it does not give effect to a right or fundamental freedom while adopting the interpretation that most favors the enforcement of the fundamental right or freedom.
The court has considered the facts of the matter and there is no evidence that this applicant was on the run.
The investigating officer’s affidavit is bare for it simply alludes to him changing telephone numbers in a bid to evade arrest but the details of the numbers are not provided.
The court is clearly being called upon to speculate which is not the business of a court. The mere change of a telephone number does not necessarily mean that one is doing so to evade arrest. At best it can only lead to suspicion that that could be the reason. However, suspicions remain suspicions and should not to form the basis of a conclusion by a court to the prejudice of an accused person. The investigator needed to do more.
The applicant’s counsel ably argued that the mistake in failing to provide the precise fixed abode of the applicant was that of counsel and should not be visited on the client. He has gone ahead to attach a lease agreement as evidence of the residential address of the applicant. The prosecution has not challenged the document thus this court has no reason to doubt it . The fact of a mistake by counsel should not indeed be visited on the client.
In Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR) Madan Cj had this to say of mistakes by practitioners and court;- “A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static system of justice cannot be efficient. Benjamin Disraeli said change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress.’’
Similarly, this court will not deny justice to the applicant on account of his counsel’s mistake. The applicant has provided the necessary information to the court and since there is no evidence that he is a flight risk other than mere suspicion, this court will grant him bail.
The court therefore reverses the decision of the lower court declining to grant bail to the applicant for it is incorrect and improper. In place thereof admits the applicant to a cash Bail of KSh 200,000. The accused shall further deposit any travel documents with the court and provide a telephone contact that he shall retain in use throughout the period of the trial.
The applicant should sing praise for the architects of the Constitution of Kenya who in their collect wisdom gave unto us a constitution, so rich in its Bill of rights that liberty is not to be curtailed without sufficient cause. The applicant has the key to his freedom literally in his pocket.
The application succeeds.
The lower court file shall be returned to the trial court for further proceedings.
The file is to be closed.
It is so ordered.
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The applicant is an accused person in Milimani Chief Magistrates Court Criminal Case Number E261 of 2025 Republic Vs Richard Githinji Wambugu and Mary Wangui Gichui.
The applicant was denied bail on 15 th may 2025 on the ground that he was a flight risk and that he had no known fixed abode. The applicant renewed his bail application on the 19 th June 2025 but again the court declined to grant bail vide a ruling delivered on 17 th July 2025.
The applicant aggrieved by the decision of the trial court approached this court by way of a Chamber Summons expressed to be brought under Section123 of the Criminal Procedure Code, Article 49 (1) (h), 50 ,165(3) of the Constitution and all other enabling provisions of the law seeking the following ORDERS;-
THAT service of this Application be dispensed with in the first instance . (spent )
THAT the court be pleased to hear this matter during the Vacation (spent ).
THAT the Honourable court be pleased to grant bail/bond to the
applicant .
THAT the Honourable court be pleased to make other orders as the ends of justice may require.
The applicant anchored the application on the following grounds:-
a) THAT the Applicant/Accused was denied bail/bond on the 15th day of May 2025.
(b) THAT the circumstances of the Applicant have changed and worthy of consideration
(c) THAT the Applicant/Accused continues to in remand prison custody.
The application was supported by an affidavit sworn by the applicants counsel Mr. Stanley Kang’ahi who deposed as follows;-
THAT he is an Advocate of the High Court of Kenya having conduct
of the case on behalf of the Applicant
THAT he is familiar with the facts of this case and has authority to
swear this Affidavit.
THAT the Applicant/Accused person was charged with the offence
of Conspiracy to defraud contrary to section317 of the penal code
before the Chief Magistrates Court Nairobi Milimani Criminal Case
No. E261 of 2025.
THAT the Applicant/Accused was denied bail bond and is in custody
on a pre-trial detention.
THAT during the hearing of bail bond several issues were not
presented and neither were they canvassed, which if, they had been
presented the trial court, the court would have considered to grant bail.
THAT information given to the court by counsel on record for the accused at the time, of plea was inaccurate and made without consultation with the accused.
THAT the applicant has been in union with one Rose Kanini with
whom they have stayed with at Membley Estate under tenancy lease
dated 15th July 2023 and which lease continues to subsist. (annexed
and marked SK-I is a copy of the lease Agreement)
THAT of the union they have two issues namely Liana Nyambura
Githinji aged Four (4) years, Anaya Nyambura Githinji aged One (1)
year (annexed and marked SK-ll is a copy of the birth Notification
certificates.)
THAT the applicant and his family have a fixed abode at Membley
Estate within Nairobi county hence has strong ties within the republic.
THAT am informed by my client the Applicant that this information
was never previously placed before the courts for consideration.
THAT the information that was presented previously before court by
counsel watching brief for the complainant was misleading and in
THAT the Applicant health condition has continued to deteriorate
while in remand custody and that for his wellbeing and continued
recovery would best be served if he received treatment out of
remand,
THAT I am informed by the applicant that they are willing and ready
to abide by any reasonable bail bond terms if granted and any further
conditions that the court may deem necessary so to impose.
THAT I further verily believe that this Honorable Court has powers
in both its original and inherent jurisdiction to consider and grant bail
bond to the applicant.
THAT I swear this Affidavit on behalf of the Applicant/ Accused
person who is presently in custody and what is deponed to herein is
true to the best of my knowledge, information and belief save where
otherwise stated.
The applicants case simply put is that he has a fixed abode and that the advocate who appeared for him in the trial court failed in making that representation clearly to court thus resulting in the denial of bail. In the oral argument by Mr. Kang’ahi for the accused, counsel urged this court should consider that the advocate’s failure should not be visited on his client.
This court has been moved to exercise its supervisory jurisdiction over the decision of the lower court. The scope of revisionary powers of this court is limited to determining whether a decision is correct, proper and legal is found in Constitutional and statutory provisions.
The Oxford English Dictionary Vol. VIII defines the word propriety to mean fitness, appropriateness suitability, conformity with requirements, rule of principle rightness, accuracy, correctness, justness.
The depth of revisional jurisdiction of the high Court was set out by the Court of appeal in which cited the case of Sriraja Lakshmi Dyeing Works vs. Pangaswamy Chettair [1980] 4SCC 259 where the Supreme Court of India elucidated the principles as follows: -
“The conference of revisional jurisdiction is generally for the purpose of keeping tribunal subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statues is always included in appellate jurisdiction but not vice versa. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. The dominal ideal conveyed by the incorporation of the words ‘to satisfy itself’ under section 25 read (which has similar provisions with Kenya’s section 362 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya) is essentially a power of superintendence. The scope of the revisional powers of the high Court where the high Court is required to be satisfied that the decision is according to law as to the legality and propriety of the order under revision, is quite obviously a much wider jurisdiction. That jurisdiction enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional Court is not a second Court of appeal (emphasis supplied).”
The court in reviewing the decision once satisfied that the decision is incorrect should not hesitate to reverse the same and in place therefor make appropriate orders.
In the instant matter this court is to examine whether the prosecution presented material that sufficiently established compelling reasons to justify the denial of bail. The standard of proof of compelling reasons being on a balance of probabilities.
If the court finds that the reasons advanced do not meet the threshold of compelling reasons, then the court would proceed to quash the decision declining to grant bail and in place therefor order the release of the applicant on bail.
In Mukuru v Republic (Criminal Revision E149 of 2023) [2024] KEHC 3764 (KLR) (18 April 2024) (Ruling) LW Gitari J examining the supervisory jurisdiction of the High Court stated;-
“This supervisory jurisdiction is expounded unclear section 362 and 364 of the Criminal Procedure Code, (supra). In a persuasive decision by Justice Odunga (as he then was) in Joseph Nduvi Mbuvi v Republic (2019) eKLR, the Judge stated:-
“In my considered view the object of revisional jurisdiction of the High Court is to enable the High Court in appropriate cases whether during the pendency of the proceedings in the sub-ordinate courts or at the conclusion of the proceeding to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing should be proceeded with. In other words, the High Court revisionary jurisdiction includes ensuring that where the proceedings in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”
The focus of the court therefore would be to examine the regularity of the proceedings and give appropriate directions or orders. The courts have over time examined what amounts to compelling reasons to warrant the denial of bail. The decision of the lower court would thus be weighed against settled precedent on compelling reasons and see whether the test was met before the trial court could properly exercise its discretion to deny bail.
In JONATHAN KYALO MUTUKU VS REP. 2021 KEHC 6564 the court stated the following in regard to what amounts to compelling reasons;-
‘’The Constitution however has not identified what qualifies under the term “compelling reasons”. The ordinary meaning according to
Thesaurus English Dictionary of the word “compelling” is forceful, convincing, persuasive, undeniable and gripping. From this plain
meaning it is apparent that the court would consider any fact or circumstances brought to its attention by the prosecution which would
convince the court that the release of the accused would not augur well for the administration of justice or for the trial at hand. The court
would therefore in my view consider the circumstances of each case using commonly known criteria, primary of which is whether or not the
accused will attend trial.
11. It is true that the right to bail is not absolute and where there are compelling reasons the said right may be restricted. Nevertheless, since
the Constitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail.
What the compelling reasons are, however, depend on the circumstances of each case and these circumstances are to be considered cumulatively and not in isolation. The mere fact therefore that the offence with which an accused is charged carries a serious sentence is however not necessarily a reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond appearing for trial.
Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend the trial. The imposition of terms of the bail if necessary, must similarly be for the purposes of ensuring the attendance of the accused at the
trial and ought not to be based solely on the sentence that the accused stands to serve if convicted. It is therefore my view that the discretion
to grant bail and set the conditions rests with the court. In exercising its discretion, the court must seek to strike a balance between protecting
the liberty of the individual and safeguarding the proper administration of justice. As the fundamental consideration is the interests of
justice, the court will lean in favour of liberty and grant bail where possible, provided the interests of justice will not be prejudiced by this.
Put differently, bail should not be refused unless there are sufficient grounds for believing that the accused will fail to observe the conditions of her release.
The primary consideration in deciding whether or not to grant bail should be whether the accused person would eventually return to court once released on bail. The moment that doubt is cleared in the mind of the court bail orders should flow for that is the spirit of Article 49(1) (h) of the Constitution.
The framers of our constitution in making all offences bailable in Kenya had witnessed how the right to liberty would be whimsically curtailed by the wielders of power in the authoritarian one -party state. The intention was to make a complete departure from the dark chapter of our human rights history and walk into the new found socially transformative chapter in Kenya where human rights are considered inherent entitlements to all persons as opposed to charitable gifts of the state to its citizens thus the express Constitutional provision under Article 19. The denial of bail must therefore be justifiable and in circumstances that meet the compelling reasons test.
In S vs. Nyaruviro & Another (HB 262-17, HCB 122-17, XREF CRB 1454A-B-17) [2017] ZWBHC 262 (31 August
2017) , the Court held that:
“The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of
the following grounds are established where there is a likelihood that the accused, if he or she were released on bail, will
endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or
not stand his or her trial or appear to receive sentence; or
attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system… the ties of the accused to the place of trial; the existence and location of assets held by the accused; the accused’s means of travel and his or her possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; the strength of the case for the prosecution and the corresponding incentive of the accused to flee; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account…In considering any question the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely (i) the period for which the accused has already been in custody since his or her arrest; (ii) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; (iii) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; (iv) any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; (v) the state of health of the accused; (vi)
any other factor which in the opinion of the court should be taken into account… In assessing the risk of abscondment, the established approach is for the court to assess this risk by first assessing the likely degree of temptation to abscond which may face the accused. To do this, one must consider the gravity of the charge because quite clearly, the more serious the charge, the more severe the sentence is likely to be. In S v Nichas 1977 (1) SA 257 (C) it was observed that if there is a likelihood of heavy sentences being imposed the accused will be tempted to abscond. Similar sentiments were stated in S v Hudson 1980 (4) SA 145 (D) 146 in the following terms;
“The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.”
In other words, the possibility of a severe sentence enhances any possible inducement to the accused to flee. See also Aitken v AG 1992 (2) ZLR 249 and Norman Mapfumo vs. The State HH 63/2008… The other relevant factor to be considered is the relative strength of the state’s case against the accused on the merits of the charge and therefore the probability of a conviction. It stands to reason that the more likely a conviction, the greater will be the temptation not to stand trial. Despite being the fulcrum of the application, this factor must be considered together with other factors in the case.”
17.The Bail and bond decision-making should be guided by the following principles, which are derived from international best practices:
(a) The right of accused person to be presumed innocent. Every accused person shall be presumed innocent (Article 50(2) of the Constitution). This is the primary rationale for the requirement of the Constitution that an arrested person has the right to be released on bail or bond. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible.
The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.
(b) Accused Person’s Right to Liberty. Every accused person has the right to liberty. As a general rule, therefore, every accused person should not be detained, but should be released subject to his/her guarantee to appear for trial. Pretrial detention should therefore be a measure of last resort, and the criminal justice institutions should make every reasonable effort to avoid pretrial detention. (emphasis added).
(c) Accused’s obligation to attend trial. Bail and bond provide guarantees that accused persons will attend trial. They are securities that aim to procure the release of an accused person from legal custody together with an undertaking that he or she will appear for trial.
(d) Right to Reasonable Bail and Bond Terms: Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.
The ultimate goal of bail or bond is to guarantee that an accused person attends his or her trial, it is important to underscore that Article 49(1) of the Constitution makes it clear that the courts retain the discretion to decide whether or not to grant bail. The discretion must however be exercised judiciously. The courts must always bear in mind the duty imposed on them under Article 20 (3) (a) and (b) to develop the law to the extent that it does not give effect to a right or fundamental freedom while adopting the interpretation that most favors the enforcement of the fundamental right or freedom.
The court has considered the facts of the matter and there is no evidence that this applicant was on the run.
The investigating officer’s affidavit is bare for it simply alludes to him changing telephone numbers in a bid to evade arrest but the details of the numbers are not provided.
The court is clearly being called upon to speculate which is not the business of a court. The mere change of a telephone number does not necessarily mean that one is doing so to evade arrest. At best it can only lead to suspicion that that could be the reason. However, suspicions remain suspicions and should not to form the basis of a conclusion by a court to the prejudice of an accused person. The investigator needed to do more.
The applicant’s counsel ably argued that the mistake in failing to provide the precise fixed abode of the applicant was that of counsel and should not be visited on the client. He has gone ahead to attach a lease agreement as evidence of the residential address of the applicant. The prosecution has not challenged the document thus this court has no reason to doubt it . The fact of a mistake by counsel should not indeed be visited on the client.
In Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR) Madan Cj had this to say of mistakes by practitioners and court;- “A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static system of justice cannot be efficient. Benjamin Disraeli said change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress.’’
Similarly, this court will not deny justice to the applicant on account of his counsel’s mistake. The applicant has provided the necessary information to the court and since there is no evidence that he is a flight risk other than mere suspicion, this court will grant him bail.
The court therefore reverses the decision of the lower court declining to grant bail to the applicant for it is incorrect and improper. In place thereof admits the applicant to a cash Bail of KSh 200,000. The accused shall further deposit any travel documents with the court and provide a telephone contact that he shall retain in use throughout the period of the trial.
The applicant should sing praise for the architects of the Constitution of Kenya who in their collect wisdom gave unto us a constitution, so rich in its Bill of rights that liberty is not to be curtailed without sufficient cause. The applicant has the key to his freedom literally in his pocket.
The application succeeds.
The lower court file shall be returned to the trial court for further proceedings.
The file is to be closed.
It is so ordered.
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