-
( Arising from the orders in Shanzu Chief Magistrate’s Court in Criminal Case No. E455 of 2025 presided over by Hon. R.M. Mbogo)
1. The Notice of Motion dated 11th June 2025 is brought Under article 165 6 (7), of the constitution of Kenya 2010, section 362, 363,364 and 365 of the criminal procedure code CAP 75 of the laws of Kenya, inherent jurisdiction of the court and any other enabling provisions of the laws of Kenya.
2. The applicant seeks the following orders:-
i. That the matter be certified urgent and be heard ex-parte in the first instance
ii. That the court record in criminal case No. E455 of 2025 (Shanzu) Republic versus Rose Odero be called for immediately and placed before the learned duty judge.
iii. That the court interrogates the legality, fairness and whether it's within the confines of fair trial for the trial court to order for a pre-bail report before releasing the applicant on cash bail and whether the trial court properly exercised its power.
iv. That the courts orders that the orders by the trial court requiring pre-bail report is illegal, unfair and not within the confines of fair trial.
v. That Applicant herein be admitted on reasonable cash bail with an alternative of bond
3. The application is supported by the affidavit of James Onduso and on the following grounds:
i. THAT the accused herein was arrested on 08/06/2025 at 12pm and arraigned in court on 10/06/2025 almost 48 hours after the arrest, contrary to the dictates of the constitution that requires accused persons to be arraigned in court within 24 hours of arrest.
ii. THAT further, despite the fact that the defence counsel brought to the attention of the court that the accused person had been unlawfully detained way beyond the 24 hours as enshrined in the constitution, the learned magistrate ignored and instead of releasing the accused on cash bail to relief her from the torturous experience she had undergone as a matter of right, the magistrate added to the wound by detaining her for a further 21 days without any reasonable excuse.
iii. THAT the matter has been stated for mention on 2/07/2025 hence the applicant will be in custody for more than 21 days before her bail/or bond can be considered, while waiting for a pre-bail report which is not necessary for her admission to cash bail. THAT it is extremely torturous to unlawfully detain an accused person for more than 48 hours before being arraigned in court and upon arraignment in court to extend the detention for a further period of 21 days without any boss.
iv. THAT if the hearing and determination of this revision is not expedited and determined before the 2/7/2024, this revision shall be rendered nugatory since the applicant will have unfairly served her day in custody.
v. THAT there was no reason whatsoever for the learned magistrate to demand for a pre-bail report before admitting the accused/applicant on bail as there was no opposition or any reason advanced by the prosecution as to the conduct of the accused person.
vi. THAT efforts to demonstrate to court that even the charges framed against the accused person are far-fetched for reasons that the items contained in the charge sheet purported to have been stolen are part of the estate of one ROSEMARY ANN AKINYI OKENO where the husband to the accused is the legal administrator and that there is an active succession case being succession cause number 288 of 2015 hence the charges are purely framed to frustrate the applicant, fell in deaf ears.
vii. THAT the learned magistrate having been supplied with some pleadings as well as a copy of a ruling from the succession matter in 288 of 2015 as a demonstration that indeed this is purely a family matter, and that the properties contained in the charge sheet are under the legal administrator who is actually the husband to the deceased hence cannot be said to steal that which he administer, the learned magistrate ought to have inferred malice on the part of the prosecution and realise that the matter does not fall within the criminal justice system and consequently refuse to be drawn into the monkey games of third parties trying to impose themselves as beneficiaries of the estate and are merely using the criminal justice system to frustrate the beneficiaries of the estate.
viii. Further, the learned magistrate ought to have satisfied himself that the charges are not very strong hence no likelihood that the accused person can disappear or be any threat to require a pre-bail report.
ix. THAT indeed, considering that the matter herein might not fail within the ambits of the criminal justice system and bearing in mind that the accused had been detained for more than 48 hours, the learned magistrate ought to have considered the circumstances and admit the applicant to cash bail, which is a constitutional right and can only be limited under compelling circumstances.
x. THAT proceeding to wait for a pre-bail report as ordered by the learned magistrate, without any justifiable reason or any affidavit sworn by the investigating officer or any reasons advanced by the prosecution, the applicant (accused) shall suffer great prejudice and the interest of justice shall be compromised.
xi. THAT it is therefore pertinent that the present Application be certified urgent and the same be allowed as prayed failure to which the applicant will suffer irreparable loss.
xii. THAT it is only fair and just that the orders sought in the application of instance be allowed as prayed.
4. The application was argued through brief oral submissions by Mr..Onduso for the applicant and Mr . Sirima for the respondent.
THE LA W
5. The bail and bond policy guidelines states as hereunder:
4.10 . Courts face a number of challenges in making bail decisions. In the case of bail pending trial, the burden of proof lies on the prosecution to establish the existence of compelling reasons that would justify the denial of bail, or the imposition of suitable bail terms and conditions. Some courts have required the prosecution to present “cogent, very strong and specific evidence” in order to justify the denial of bail.45 Mere allegations or suspicion will not be sufficient. According to these courts, where the prosecution opposes bail, it must support its objection with cogent reasons and facts, and it is not enough to “make bare objections and insinuations.
6.4.11 However, what is the appropriate standard of proof? For example, where the prosecution alleges that an accused person will interfere with witnesses, should it prove this allegation on a balance of probabilities or beyond reasonable doubt in order to persuade the court? And what form of evidence should the prosecution present to persuade the courts of the existence of compelling reasons? Although some courts insist that the prosecution must produce an affidavit sworn by the investigating officer,47 others do not.48 But even where the prosecution has presented such affidavits, some courts have not been persuaded that they meet the compelling reasons threshold, much to the disappointment of investigating officers. Second, how can the court make a bail determination without compromising the accused person’s right to a fair and unbiased trial?
7. Third, how can courts obtain the accurate, relevant, and verified information they require to make fair bail decisions? Unfortunately, the nature of our adversarial system is such that the information furnished to the court on behalf of bail applicants is not always reliable, while the prosecution may prefer that the accused person be detained pending trial for various reasons. Further, because courts do not have systems for verifying such information, they may not always make fair and appropriate bail decisions. It may therefore be necessary for courts to seek independent information if they are to make fair and appropriate bail decisions. Such bail information could, for example, be obtained from the Probation and Aftercare Service, which prepares bail reports at the request of the court. However, the integrity of such independent information cannot be taken for granted. In any case, the courts are not obliged to use bail reports, with the effect that while some courts use them, others do not. Nevertheless, because of severe resource and personnel constraints, it is doubtful whether the Probation and Aftercare Service would manage were the Judiciary to make bail reports mandatory in all cases. A potential drawback of the bail reports is that they may contain information that is prejudicial to the accused person (such as previous convictions), which may make it necessary for the courts to separate bail determinations from the trial. In addition, given the influential role that probation officers increasingly play in bail determinations, accused persons and their families may offer them bribes to influence their reports. Mechanisms should therefore be established to ensure the integrity of bail reports
8. My brother Judge R Nyakundi in Director of Public Prosecutions v Mut ai and 3 others
Neutral citation: [2024] KEHC 3718 (KLR) stated that - ‘ A pre-bail report acts as a guide to the Court when considering the suitability of an accused person whether to be released on bail and/or bond. However, the pre-bail report is not the final say.
9. I n Republic Vs. William Mwangi Wa Mwangi [2014] eKLR Muriithi, J held that: “It is now settled that in the event that the state is opposed to the grant of bail to an accused person it has the onus of demonstrating that compelling reasons exist to justify denial of the Constitutional right to bail…It is trite that the cardinal principle which the court should consider in deciding whether to grant bail is whether the accused will turn up for his trial and whether there are substantial grounds to believe that he is likely to abscond if released on bail.”
10. Similarly, in the case of Kelly Kase Bunjika v Republi c [2017] eKLR the Court had this to say: -“It is clear that the primary consideration for bail is whether the accused will attend his trial for charges facing him and it must therefore be a compelling reason if it is demonstrated that the accused person is likely to fail to attend court proceedings. The question in this matter becomes whether there is on a balance of probabilities evidence that the accused is likely to abscond.”
11. In Nyeri High Court Criminal Case No. 8 of 2016 Republic vs Danford Kabage Mwangi the criteria or compelling reasons to consider in the exercise of judicial discretion in bail applications were set out to include:
i. The nature of the charges
ii. The strength of the evidence.
iii. The gravity of the punishment in the event of conviction.
iv. The previous criminal record of the accused, if any.
v. The probability that the accused may not surrender himself for trial.vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
vi. The likelihood of further charges being brought against the accused
vii. Detention for the protection of the accused.
ANALYSIS
12. In our instance case, Mr. Sirima for Respondent has pointed out that the Applicant had raised certain issues such as the ownership of the goods, the succession matter and the detention before arraignment in court. That the trial court was therefore correct in asking for the pre bail information so that all aspects are taken into account.
13. Mr. Onduso for the Applicant pointed out that these issues were raised to emphasis the dire need to grant bail and the injustice the Applicant had suffered and they were surprised that their input was used against them without proper reasons being recorded.
14. I have looked at the record and I note that indeed the reasons for the report are not indicated. It is also on record that the state did not oppose the grant of bail or bond.
15. Therefore the decision to deny/or delay the decision on bond for another 21 days, does appear to be hard handed and irregular.
16. The bail information report is not meant to get into the actual circumstances of the case nor the eligibility of the charges. That is the mandate of the DPP. It is meant to assess the personal circumstances of the applicant and if they qualify to be granted bail or bond and how the bond will affect the community or close family members.
17. Those were not the considerations herein.
18. Further, I take notice that bail reports in this jurisdiction take 14 days or so, to be availed, or even less, and in 21 days was a bit excessive taking into account that the Applicant had complained of some prior unlawful detention. she had also raised the issue of ill health and the matter was not neccesarily a violent or serious crime.
19. Bail and bond are guaranteed in our constitution and subsequently any law or policy consideration should be applied in a facilitative manner and not as a bottle neck. This should have happened here as there was no objection to bond nor any indication that the applicant was a flight risk or a threat.
20. Accordingly, I find that the Application has merit and it is allowed. The order delaying bail pending the bail information report is set aside.
21. The Applicant is hereby granted a bond of Kshs.300,000/= with 1 surety of a similar amount or a cash bail of Kshs.100,000/= with 2 contact persons who should avail copy of ID, Photographs and phone contacts.
22. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS, this 17th day of June 2025
H ON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MR ONDUSO FOR THEAPPLICANT
MR SIRIMA FOR THE RESPONDENT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
( Arising from the orders in Shanzu Chief Magistrate’s Court in Criminal Case No. E455 of 2025 presided over by Hon. R.M. Mbogo)
1. The Notice of Motion dated 11th June 2025 is brought Under article 165 6 (7), of the constitution of Kenya 2010, section 362, 363,364 and 365 of the criminal procedure code CAP 75 of the laws of Kenya, inherent jurisdiction of the court and any other enabling provisions of the laws of Kenya.
2. The applicant seeks the following orders:-
i. That the matter be certified urgent and be heard ex-parte in the first instance
ii. That the court record in criminal case No. E455 of 2025 (Shanzu) Republic versus Rose Odero be called for immediately and placed before the learned duty judge.
iii. That the court interrogates the legality, fairness and whether it's within the confines of fair trial for the trial court to order for a pre-bail report before releasing the applicant on cash bail and whether the trial court properly exercised its power.
iv. That the courts orders that the orders by the trial court requiring pre-bail report is illegal, unfair and not within the confines of fair trial.
v. That Applicant herein be admitted on reasonable cash bail with an alternative of bond
3. The application is supported by the affidavit of James Onduso and on the following grounds:
i. THAT the accused herein was arrested on 08/06/2025 at 12pm and arraigned in court on 10/06/2025 almost 48 hours after the arrest, contrary to the dictates of the constitution that requires accused persons to be arraigned in court within 24 hours of arrest.
ii. THAT further, despite the fact that the defence counsel brought to the attention of the court that the accused person had been unlawfully detained way beyond the 24 hours as enshrined in the constitution, the learned magistrate ignored and instead of releasing the accused on cash bail to relief her from the torturous experience she had undergone as a matter of right, the magistrate added to the wound by detaining her for a further 21 days without any reasonable excuse.
iii. THAT the matter has been stated for mention on 2/07/2025 hence the applicant will be in custody for more than 21 days before her bail/or bond can be considered, while waiting for a pre-bail report which is not necessary for her admission to cash bail. THAT it is extremely torturous to unlawfully detain an accused person for more than 48 hours before being arraigned in court and upon arraignment in court to extend the detention for a further period of 21 days without any boss.
iv. THAT if the hearing and determination of this revision is not expedited and determined before the 2/7/2024, this revision shall be rendered nugatory since the applicant will have unfairly served her day in custody.
v. THAT there was no reason whatsoever for the learned magistrate to demand for a pre-bail report before admitting the accused/applicant on bail as there was no opposition or any reason advanced by the prosecution as to the conduct of the accused person.
vi. THAT efforts to demonstrate to court that even the charges framed against the accused person are far-fetched for reasons that the items contained in the charge sheet purported to have been stolen are part of the estate of one ROSEMARY ANN AKINYI OKENO where the husband to the accused is the legal administrator and that there is an active succession case being succession cause number 288 of 2015 hence the charges are purely framed to frustrate the applicant, fell in deaf ears.
vii. THAT the learned magistrate having been supplied with some pleadings as well as a copy of a ruling from the succession matter in 288 of 2015 as a demonstration that indeed this is purely a family matter, and that the properties contained in the charge sheet are under the legal administrator who is actually the husband to the deceased hence cannot be said to steal that which he administer, the learned magistrate ought to have inferred malice on the part of the prosecution and realise that the matter does not fall within the criminal justice system and consequently refuse to be drawn into the monkey games of third parties trying to impose themselves as beneficiaries of the estate and are merely using the criminal justice system to frustrate the beneficiaries of the estate.
viii. Further, the learned magistrate ought to have satisfied himself that the charges are not very strong hence no likelihood that the accused person can disappear or be any threat to require a pre-bail report.
ix. THAT indeed, considering that the matter herein might not fail within the ambits of the criminal justice system and bearing in mind that the accused had been detained for more than 48 hours, the learned magistrate ought to have considered the circumstances and admit the applicant to cash bail, which is a constitutional right and can only be limited under compelling circumstances.
x. THAT proceeding to wait for a pre-bail report as ordered by the learned magistrate, without any justifiable reason or any affidavit sworn by the investigating officer or any reasons advanced by the prosecution, the applicant (accused) shall suffer great prejudice and the interest of justice shall be compromised.
xi. THAT it is therefore pertinent that the present Application be certified urgent and the same be allowed as prayed failure to which the applicant will suffer irreparable loss.
xii. THAT it is only fair and just that the orders sought in the application of instance be allowed as prayed.
4. The application was argued through brief oral submissions by Mr..Onduso for the applicant and Mr . Sirima for the respondent.
THE LA W
5. The bail and bond policy guidelines states as hereunder:
4.10 . Courts face a number of challenges in making bail decisions. In the case of bail pending trial, the burden of proof lies on the prosecution to establish the existence of compelling reasons that would justify the denial of bail, or the imposition of suitable bail terms and conditions. Some courts have required the prosecution to present “cogent, very strong and specific evidence” in order to justify the denial of bail.45 Mere allegations or suspicion will not be sufficient. According to these courts, where the prosecution opposes bail, it must support its objection with cogent reasons and facts, and it is not enough to “make bare objections and insinuations.
6.4.11 However, what is the appropriate standard of proof? For example, where the prosecution alleges that an accused person will interfere with witnesses, should it prove this allegation on a balance of probabilities or beyond reasonable doubt in order to persuade the court? And what form of evidence should the prosecution present to persuade the courts of the existence of compelling reasons? Although some courts insist that the prosecution must produce an affidavit sworn by the investigating officer,47 others do not.48 But even where the prosecution has presented such affidavits, some courts have not been persuaded that they meet the compelling reasons threshold, much to the disappointment of investigating officers. Second, how can the court make a bail determination without compromising the accused person’s right to a fair and unbiased trial?
7. Third, how can courts obtain the accurate, relevant, and verified information they require to make fair bail decisions? Unfortunately, the nature of our adversarial system is such that the information furnished to the court on behalf of bail applicants is not always reliable, while the prosecution may prefer that the accused person be detained pending trial for various reasons. Further, because courts do not have systems for verifying such information, they may not always make fair and appropriate bail decisions. It may therefore be necessary for courts to seek independent information if they are to make fair and appropriate bail decisions. Such bail information could, for example, be obtained from the Probation and Aftercare Service, which prepares bail reports at the request of the court. However, the integrity of such independent information cannot be taken for granted. In any case, the courts are not obliged to use bail reports, with the effect that while some courts use them, others do not. Nevertheless, because of severe resource and personnel constraints, it is doubtful whether the Probation and Aftercare Service would manage were the Judiciary to make bail reports mandatory in all cases. A potential drawback of the bail reports is that they may contain information that is prejudicial to the accused person (such as previous convictions), which may make it necessary for the courts to separate bail determinations from the trial. In addition, given the influential role that probation officers increasingly play in bail determinations, accused persons and their families may offer them bribes to influence their reports. Mechanisms should therefore be established to ensure the integrity of bail reports
8. My brother Judge R Nyakundi in Director of Public Prosecutions v Mut ai and 3 others
Neutral citation: [2024] KEHC 3718 (KLR) stated that - ‘ A pre-bail report acts as a guide to the Court when considering the suitability of an accused person whether to be released on bail and/or bond. However, the pre-bail report is not the final say.
9. I n Republic Vs. William Mwangi Wa Mwangi [2014] eKLR Muriithi, J held that: “It is now settled that in the event that the state is opposed to the grant of bail to an accused person it has the onus of demonstrating that compelling reasons exist to justify denial of the Constitutional right to bail…It is trite that the cardinal principle which the court should consider in deciding whether to grant bail is whether the accused will turn up for his trial and whether there are substantial grounds to believe that he is likely to abscond if released on bail.”
10. Similarly, in the case of Kelly Kase Bunjika v Republi c [2017] eKLR the Court had this to say: -“It is clear that the primary consideration for bail is whether the accused will attend his trial for charges facing him and it must therefore be a compelling reason if it is demonstrated that the accused person is likely to fail to attend court proceedings. The question in this matter becomes whether there is on a balance of probabilities evidence that the accused is likely to abscond.”
11. In Nyeri High Court Criminal Case No. 8 of 2016 Republic vs Danford Kabage Mwangi the criteria or compelling reasons to consider in the exercise of judicial discretion in bail applications were set out to include:
i. The nature of the charges
ii. The strength of the evidence.
iii. The gravity of the punishment in the event of conviction.
iv. The previous criminal record of the accused, if any.
v. The probability that the accused may not surrender himself for trial.vi. The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
vi. The likelihood of further charges being brought against the accused
vii. Detention for the protection of the accused.
ANALYSIS
12. In our instance case, Mr. Sirima for Respondent has pointed out that the Applicant had raised certain issues such as the ownership of the goods, the succession matter and the detention before arraignment in court. That the trial court was therefore correct in asking for the pre bail information so that all aspects are taken into account.
13. Mr. Onduso for the Applicant pointed out that these issues were raised to emphasis the dire need to grant bail and the injustice the Applicant had suffered and they were surprised that their input was used against them without proper reasons being recorded.
14. I have looked at the record and I note that indeed the reasons for the report are not indicated. It is also on record that the state did not oppose the grant of bail or bond.
15. Therefore the decision to deny/or delay the decision on bond for another 21 days, does appear to be hard handed and irregular.
16. The bail information report is not meant to get into the actual circumstances of the case nor the eligibility of the charges. That is the mandate of the DPP. It is meant to assess the personal circumstances of the applicant and if they qualify to be granted bail or bond and how the bond will affect the community or close family members.
17. Those were not the considerations herein.
18. Further, I take notice that bail reports in this jurisdiction take 14 days or so, to be availed, or even less, and in 21 days was a bit excessive taking into account that the Applicant had complained of some prior unlawful detention. she had also raised the issue of ill health and the matter was not neccesarily a violent or serious crime.
19. Bail and bond are guaranteed in our constitution and subsequently any law or policy consideration should be applied in a facilitative manner and not as a bottle neck. This should have happened here as there was no objection to bond nor any indication that the applicant was a flight risk or a threat.
20. Accordingly, I find that the Application has merit and it is allowed. The order delaying bail pending the bail information report is set aside.
21. The Applicant is hereby granted a bond of Kshs.300,000/= with 1 surety of a similar amount or a cash bail of Kshs.100,000/= with 2 contact persons who should avail copy of ID, Photographs and phone contacts.
22. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS, this 17th day of June 2025
H ON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MR ONDUSO FOR THEAPPLICANT
MR SIRIMA FOR THE RESPONDENT
HON. LADY JUSTICE W. K. MICHENI
JUDGE