1. The application herein by notice of motion dated 12/3/2025 prays for review of bond terms issued by the magistrate’s court on 10/3/2025 in Kwale Magistrates Criminal Case No. E107 of 2025 and to grant the applicant an alternative cash bail in lieu of security bond.
2. The request is based on many grounds but the ones I find relevant are that:
a. the bond terms granted by the trial court are excessive and more than double the amount indicated in the charge sheet.
b. the applicant has not been able to raise the security bond and is still in custody.
c. the applicant is aged 65 years and has houses in Kwale and Mombasa.
d. the applicant is involved in a dispute with the complainant in the criminal case Allan Mwamuye, an advocate in Kwale Magistrates ELC No. E027 of 2024, Shish Vendors limited v. Allan Muye Mwamuye Mzungu & Another. The two cases are set to be heard by the same magistrate and the applicant has applied before the ELC in Miscellaneous Application No. E003 of 2025 for the land case to be heard before Msambweni Magistrates Court.
3. The application is supported by the affidavit of Said Chitembwe, Advocate sworn on 12/3/2025 where the grounds in support of the application are expounded.
4. The application was disposed of on oral submissions made by learned counsels for the applicant and the respondent.
5. Learned counsel for the applicant submits that the amount allegedly obtained by false pretences as indicated in the charge sheet should not be guiding factor in fixing the bond terms as was the case by the learned trial magistrate in her observations while setting the bond terms when she said that she had taken into mind the weight of the offence and set the bond terms at KShs 2.5 million with a surety.
6. The respondent is not opposed to the review of bond terms reiterating that this court has jurisdiction under section 123 of the Criminal Procedure Code (Cap. 75) Laws of Kenya to review the bond terms. Learned counsel Ms Vallerie supported her submissions with the case of Onjiko v Republic [2024] KEHC 9003 (KLR) which learned counsel for the applicant Mr. Said Chitembwe also relied upon among others.
7. I have considered the application, the grounds in support thereof and the submissions by learned counsels. The issue for determination is whether or not this court should exercise the revisionary powers to review the bond terms set for the applicant by the trial court downwards.
8. Article 165(6) and (7) of the constitution under which this application is brought provides as follows:
(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.
9. In furtherance of the constitutional edict, section 362 CPC enables the High Court to:
“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 such subordinate court.”
10. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) 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—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
11. Review of bond is provided for under section 123(3) CPC and there being no procedure provided for the same, an application by way of a miscellaneous application should suffice. This court in exercising its revisionary jurisdiction calls for the magistrates court file and examines it to satisfy itself that a finding, order or sentence made by the subordinate court is correct, legal and proper and that the proceedings are or were regular. In the case of review of bond, the court will proceed under section 123 CPC. Luckily in this case, the certified typed proceedings of the trial court which also contain the decision setting out the bond terms were filed as annextures to the supporting affidavit.
12. The applicant is charged in Kwale Magistrates Court Criminal Case No. E107 of 2025 on two counts of obtaining money by false pretences contrary to section 313 of the Penal Code (Cap. 63) Laws of Kenya (PC). In the first count the amount allegedly obtained was KShs 875,000/= and in the second count KShs 480,000/= making a total of KShs 1,355,000/=.
13. The trial court record shows that the applicant herein took plea on 10/3/2025 after which the advocate for the applicant informed the court that he was diabetic and they were praying for reasonable cash bail or bond to enable him attend to his health. Learned counsel for the complainant Mr. Nyabero submitted that they had not filed an affidavit to oppose bond/bail but that the accused person had no known address thus he was a flight risk. He prayed that a personal bail report be made available in order for them to know his exact place of abode.
14. In her ruling the learned trial magistrate observed correctly that ordinarily the issues being raised by the counsel for the complainant ought to be raised by the State for it is the one required to demonstrate any compelling reasons to deny bond. However, since the same had not been done, the learned trial magistrate went ahead to set the bond terms at KShs 2,500,000/= with one surety and said that for cash bail, she was hesitant to provide any until she gained sight of a personal bail report that should be made available on 31/3/2025 when the matter would be mentioned for directions as to pre-trial.
15. Constitutional and statutory provisions underpin an accused person’s right to be released on bail or bond. Article 49 (1)(h) of the Constitution guarantees an accused person the right to be released on bail unless there are compelling reasons for bail to be denied. These compelling reasons have to be provided by the State. Article 50(2) of the Constitution on the other hand provides for the rights of an accused person to a fair hearing whose components are inter alia the right to be presumed innocent until proven guilty.
16. There is no dispute that the setting of bond terms is at the discretion of the trial court. However, section 123(2) CPC has given the High Court the power to reduce the bond terms so set by the trial court.
17. In the present case, the applicant was granted bond by the trial court. However, he has remained in custody to-date. That makes it apparent that he is unable to raise the bond terms fixed by the court.
18. The constitutional provisions cited above with respect to bail are given statutory effect in section 123 and 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. As is relevant to this application, Section 123 provides that:
(1) …
(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
19. The law has not defined what excessive bail amount is but the same can be considered on a case by case basis. In the Ramadhan Iddi Ramadhan & 5 others v Republic [2019] eKLR the High Court made reference to the United States case of Stack v Boyle U.S. 1.3.1951 in the Supreme Court of the United States of America where in defining what excessive bail terms means and which I find applicable in our jurisdiction:
“the court provided guidelines in assessing “whether bail is excessive starting from the premise that the traditional right to Freedom before conviction permits the unhampered preparations of a defence and serves to prevent the infliction of punishment prior to conviction. The court defined excessive as: Bail set at a figure higher than an amount reasonably calculated to assure the presence of the accused. Significantly, the court tied the question of whether a bail determination is excessive to the purpose of bail. As the court explained, the purpose of bail is to help assure the presence of the defendant at subsequent proceedings. Since the freedom of bail is limited, the filing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.”
20. In this case, the continued stay of the applicant in custody can only be explained on account of excessive bond terms set for him by the trial court.
21. Courts have reiterated time and again that the primary purpose of bail is to secure the accused person’s attendance at court to answer the charge at the specified time. (See the case of Ng’ang’a v Republic (1985) eKLR.).
22. In the case of Andrew Young Otieno v Republic [2017] eKLR, Kimaru J said as follows with regard to review of bond terms for an accused person:
“This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining the bond terms to be imposed. In the present application, it was clear to this court that the Applicant was unable to raise the bond terms imposed by the trial magistrate.”
23. I am persuaded to follow the foregoing decisions and find that the learned trial magistrate fell in error first when she fixed excessive bond terms in relation to the charges facing the applicant such that the applicant is unable to meet them and second in failing to fix the cash bail terms thereby appearing to accede to the complainant’s counsel’s submission that the applicant was a flight risk, which issue was only raised by counsel on the floor without any supporting evidence and had not been raised by the State. In any case, the applicant is charged in the criminal case with obtaining money but failing to do some construction work for the complainant. There is evidence that the two are also before the magistrates ELC in another civil matter. Is there a possibility that under those circumstances, the applicant cannot be traced? The circumstances do not say so. I find it difficult to believe that the complainant was dealing with a person who was not well known to him and whom he cannot easily trace.
24. Another error by the trial court was to fix the next date for activity in the case on 31/3/2025 which was more than 14 days from the date the matter was last in court. This date which would be 20 days away without a mention date in between would be in breach of section 205 CPC which requires that no adjournment shall be for more than fifteen clear days, where the accused person has been committed to prison.
25. In the premises, I find that the application herein has merit. In terms of section 123(3) CPC, and in furtherance of the Hon. the Chief Justice’s directions on decongestion of prisons dated 19/8/2024, this court reviews the bond terms set for the accused person by the trial court to KShs 200,000/= with one surety of a like sum or cash bail of KShs 100,000/=. Where the applicant presents a surety, the Deputy Registrar of this Court will proceed to examine the said surety for suitability to secure the attendance of the applicant at trial. Considering the time the applicant has remained in custody, verification of the documents for authenticity shall be done within 3 days of presentation failure to which the same shall be done after the approval process of the surety.
26. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 18th day of March 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Dr. Said Chitembwe for the applicant
M/s Vallerie for the Respondent
Johnson - Court Assistant
2. The request is based on many grounds but the ones I find relevant are that:
a. the bond terms granted by the trial court are excessive and more than double the amount indicated in the charge sheet.
b. the applicant has not been able to raise the security bond and is still in custody.
c. the applicant is aged 65 years and has houses in Kwale and Mombasa.
d. the applicant is involved in a dispute with the complainant in the criminal case Allan Mwamuye, an advocate in Kwale Magistrates ELC No. E027 of 2024, Shish Vendors limited v. Allan Muye Mwamuye Mzungu & Another. The two cases are set to be heard by the same magistrate and the applicant has applied before the ELC in Miscellaneous Application No. E003 of 2025 for the land case to be heard before Msambweni Magistrates Court.
3. The application is supported by the affidavit of Said Chitembwe, Advocate sworn on 12/3/2025 where the grounds in support of the application are expounded.
4. The application was disposed of on oral submissions made by learned counsels for the applicant and the respondent.
5. Learned counsel for the applicant submits that the amount allegedly obtained by false pretences as indicated in the charge sheet should not be guiding factor in fixing the bond terms as was the case by the learned trial magistrate in her observations while setting the bond terms when she said that she had taken into mind the weight of the offence and set the bond terms at KShs 2.5 million with a surety.
6. The respondent is not opposed to the review of bond terms reiterating that this court has jurisdiction under section 123 of the Criminal Procedure Code (Cap. 75) Laws of Kenya to review the bond terms. Learned counsel Ms Vallerie supported her submissions with the case of Onjiko v Republic [2024] KEHC 9003 (KLR) which learned counsel for the applicant Mr. Said Chitembwe also relied upon among others.
7. I have considered the application, the grounds in support thereof and the submissions by learned counsels. The issue for determination is whether or not this court should exercise the revisionary powers to review the bond terms set for the applicant by the trial court downwards.
8. Article 165(6) and (7) of the constitution under which this application is brought provides as follows:
(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.
9. In furtherance of the constitutional edict, section 362 CPC enables the High Court to:
“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 such subordinate court.”
10. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) 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—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
11. Review of bond is provided for under section 123(3) CPC and there being no procedure provided for the same, an application by way of a miscellaneous application should suffice. This court in exercising its revisionary jurisdiction calls for the magistrates court file and examines it to satisfy itself that a finding, order or sentence made by the subordinate court is correct, legal and proper and that the proceedings are or were regular. In the case of review of bond, the court will proceed under section 123 CPC. Luckily in this case, the certified typed proceedings of the trial court which also contain the decision setting out the bond terms were filed as annextures to the supporting affidavit.
12. The applicant is charged in Kwale Magistrates Court Criminal Case No. E107 of 2025 on two counts of obtaining money by false pretences contrary to section 313 of the Penal Code (Cap. 63) Laws of Kenya (PC). In the first count the amount allegedly obtained was KShs 875,000/= and in the second count KShs 480,000/= making a total of KShs 1,355,000/=.
13. The trial court record shows that the applicant herein took plea on 10/3/2025 after which the advocate for the applicant informed the court that he was diabetic and they were praying for reasonable cash bail or bond to enable him attend to his health. Learned counsel for the complainant Mr. Nyabero submitted that they had not filed an affidavit to oppose bond/bail but that the accused person had no known address thus he was a flight risk. He prayed that a personal bail report be made available in order for them to know his exact place of abode.
14. In her ruling the learned trial magistrate observed correctly that ordinarily the issues being raised by the counsel for the complainant ought to be raised by the State for it is the one required to demonstrate any compelling reasons to deny bond. However, since the same had not been done, the learned trial magistrate went ahead to set the bond terms at KShs 2,500,000/= with one surety and said that for cash bail, she was hesitant to provide any until she gained sight of a personal bail report that should be made available on 31/3/2025 when the matter would be mentioned for directions as to pre-trial.
15. Constitutional and statutory provisions underpin an accused person’s right to be released on bail or bond. Article 49 (1)(h) of the Constitution guarantees an accused person the right to be released on bail unless there are compelling reasons for bail to be denied. These compelling reasons have to be provided by the State. Article 50(2) of the Constitution on the other hand provides for the rights of an accused person to a fair hearing whose components are inter alia the right to be presumed innocent until proven guilty.
16. There is no dispute that the setting of bond terms is at the discretion of the trial court. However, section 123(2) CPC has given the High Court the power to reduce the bond terms so set by the trial court.
17. In the present case, the applicant was granted bond by the trial court. However, he has remained in custody to-date. That makes it apparent that he is unable to raise the bond terms fixed by the court.
18. The constitutional provisions cited above with respect to bail are given statutory effect in section 123 and 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. As is relevant to this application, Section 123 provides that:
(1) …
(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
19. The law has not defined what excessive bail amount is but the same can be considered on a case by case basis. In the Ramadhan Iddi Ramadhan & 5 others v Republic [2019] eKLR the High Court made reference to the United States case of Stack v Boyle U.S. 1.3.1951 in the Supreme Court of the United States of America where in defining what excessive bail terms means and which I find applicable in our jurisdiction:
“the court provided guidelines in assessing “whether bail is excessive starting from the premise that the traditional right to Freedom before conviction permits the unhampered preparations of a defence and serves to prevent the infliction of punishment prior to conviction. The court defined excessive as: Bail set at a figure higher than an amount reasonably calculated to assure the presence of the accused. Significantly, the court tied the question of whether a bail determination is excessive to the purpose of bail. As the court explained, the purpose of bail is to help assure the presence of the defendant at subsequent proceedings. Since the freedom of bail is limited, the filing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.”
20. In this case, the continued stay of the applicant in custody can only be explained on account of excessive bond terms set for him by the trial court.
21. Courts have reiterated time and again that the primary purpose of bail is to secure the accused person’s attendance at court to answer the charge at the specified time. (See the case of Ng’ang’a v Republic (1985) eKLR.).
22. In the case of Andrew Young Otieno v Republic [2017] eKLR, Kimaru J said as follows with regard to review of bond terms for an accused person:
“This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining the bond terms to be imposed. In the present application, it was clear to this court that the Applicant was unable to raise the bond terms imposed by the trial magistrate.”
23. I am persuaded to follow the foregoing decisions and find that the learned trial magistrate fell in error first when she fixed excessive bond terms in relation to the charges facing the applicant such that the applicant is unable to meet them and second in failing to fix the cash bail terms thereby appearing to accede to the complainant’s counsel’s submission that the applicant was a flight risk, which issue was only raised by counsel on the floor without any supporting evidence and had not been raised by the State. In any case, the applicant is charged in the criminal case with obtaining money but failing to do some construction work for the complainant. There is evidence that the two are also before the magistrates ELC in another civil matter. Is there a possibility that under those circumstances, the applicant cannot be traced? The circumstances do not say so. I find it difficult to believe that the complainant was dealing with a person who was not well known to him and whom he cannot easily trace.
24. Another error by the trial court was to fix the next date for activity in the case on 31/3/2025 which was more than 14 days from the date the matter was last in court. This date which would be 20 days away without a mention date in between would be in breach of section 205 CPC which requires that no adjournment shall be for more than fifteen clear days, where the accused person has been committed to prison.
25. In the premises, I find that the application herein has merit. In terms of section 123(3) CPC, and in furtherance of the Hon. the Chief Justice’s directions on decongestion of prisons dated 19/8/2024, this court reviews the bond terms set for the accused person by the trial court to KShs 200,000/= with one surety of a like sum or cash bail of KShs 100,000/=. Where the applicant presents a surety, the Deputy Registrar of this Court will proceed to examine the said surety for suitability to secure the attendance of the applicant at trial. Considering the time the applicant has remained in custody, verification of the documents for authenticity shall be done within 3 days of presentation failure to which the same shall be done after the approval process of the surety.
26. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 18th day of March 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Dr. Said Chitembwe for the applicant
M/s Vallerie for the Respondent
Johnson - Court Assistant