1. The Notice of Motion herein dated 11/4/2025 is by both applicants for this court to exercise its powers of revision under Article 165(6) and (7) of the Constitution as read with section 362 to 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) to call for the record in Msambweni Magistrates Court Criminal Case No. E041 of 2025 Republic v. Yunus Ally Matindi and Hemed Abdallah Hemed for the court to satisfy itself on the correctness, legality, propriety and regularity of the proceedings in particular the trial magistrate’s court ruling delivered on 28/3/2025 declining to have the applicants released on bond.
2. The applicants are jointly charged before the magistrate’s court with the offence of trafficking in narcotic drugs under Section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 63A) Laws of Kenya that on 5/2/2025 at Msambweni area within Kwale County jointly with others not before court were found trafficking in narcotic drugs namely Canabis sativa (Bhang) to wit 19.968 Kilograms with a market value of KShs 599,040/= (Five hundred and ninety nine thousand and fourty shillings) wrapped and packed in twenty blue nylon paper foils by transporting in a motor vehicle registration number T940 DNU Mitsubishi Rosa bluish in colour in contravention of the provisions of the above said Act.
3. In denying bond for both applicants, the trial court found that the charge facing the two is serious with attendant heavy punishment of a fine of not less than fifty million or imprisonment for a term of not less than fifty years imprisonment and also that the two are Tanzanian nationals involved in cross-border travel as a long-distance driver and conductor respectively. For these two reasons, the learned trial magistrate found that the two were a flight risk and therefore likely to abscond court attendance if released on bond. The trial court therefore declined to release them on bond.
4. The applicants therefore pray that pending the hearing and determination of this application this court to stay proceedings in the said case pending before the Msambweni Magistrate’s Court and to revise and set aside the ruling of the Msambweni Magistrate Court delivered on 28th March 2025 by Hon. L.W. Kabaria, Principal Magistrate, denying the applicants bail/bond, and in its place issue an order admitting the applicants to bail/bond on reasonable terms and to grant any further orders as it deems fit and just in the circumstances.
5. The application is brought under articles 49(1)(h), 50, and 159 of the Constitution of Kenya, sections 362 and 364 of the Criminal Procedure Code, (Cap 75) Laws of Kenya, and all other enabling provisions of the law and supported by the grounds as laid out on the face of the record. There are affidavits in support of the application purportedly sworn by each of the applicants but I am not satisfied that the impressions appearing against their respective names were appended by each of them as required under the Oaths and Statutory Declarations Act (Cap. 19) Laws of Kenya. The impressions are neither handwritten nor electronic signatures for the respective deponents. They appear to be rubber stamp impressions. I will therefore not consider the affidavits as supporting the application. That leaves the grounds on the face of the application which are summarized as follows that:
a. that the decision by the learned trial magistrate to deny the applicants bail/bond citing their status as Tanzanian nationals, the nature of their work involving cross border travel, and the gravity of the offence as compelling reasons was in error.
b. that the learned trial magistrate failed to adequately consider the applicants’ strong community ties in Kenya, as evidenced by the pre-bail reports, and the availability of Kenyan sureties to secure their attendance.
c. that the learned trial magistrate misdirected herself by concluding that the applicants’ work as a long-distance truck driver and conductor, respectively, inherently makes them flight risks, without exploring conditions such as passport surrender or regular reporting to ensure their presence.
d. that the applicants were not afforded a fair opportunity to address the court on alternative bail conditions that could mitigate any perceived flight risk, contrary to their right to a fair hearing under Article 50 of the Constitution.
e. that the denial of bail infringes on the applicants’ constitutional right under Article 49(1)(h) to be released on bail or bond on reasonable conditions, absent compelling reasons, which were not sufficiently established in this case.
f. that the applicants are willing to abide by any reasonable bail conditions imposed by this court to ensure their attendance at trial.
g. that the continued detention of the applicants causes undue hardship, particularly to the 1st Applicant’s family, who reside in Kenya, and violates the principle of presumption of innocence.
h. The Court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR)) but this court gave the parties the opportunity to make written submissions which learned counsels for the applicant did but the respondent did not.
6. Learned counsel for the applicant has submitted on the applicants’ constitutional right to be released on bond pending trial under Article 49(1)(h), right to be presumed innocent until the contrary is proved under Article 50(2)(a).
7. Learned counsel submits that the learned trial magistrate failed to consider that each of the applicants had strong community ties in Kenya and each of them had also secured a Kenyan surety as shown in the respective bail reports.
8. Learned counsel reiterates that the purpose of bond is to secure the attendance of an accused person at trial. For these reasons, learned counsel submits that it was erroneous for the trial court to conclude that they were a flight risk only due to their mode of work, being long-distance driver and conductor respectively.
9. I have considered the application, the grounds in support thereof and the submissions by learned counsel. The issue for determination is whether or not there is reason for this court to exercise the revisionary powers to review the decision of the trial court denying the applicants bond.
10. 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.
11. 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.”
12. 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) …
13. The trial court record shows that at the time when the accused persons took plea on 10/2/2025 and after the learned counsels for the applicants applied for the release of the applicants on favourable bond/bail terms, the court prosecutor initially informed the court that the prosecution was opposed to the release of both applicants on bond at that time as they were not Kenyan nationals. She sought that a bail report be made available first. When learned counsel for the 1st accused person informed the court that this was not a ground to oppose the release of an accused person on bond and that there was no affidavit to oppose the same, the learned prosecution counsel informed the court that the accused persons could be released on bond if they made available Kenyan sureties.
14. The plea court then made observations on why it was not prudent to have the accused persons detained to wait for a bail report and directed that the same be made available.
15. The bail report was made available on 12/3/2025 before the trial court to which the matter had been allocated by the plea court. At that time, the learned prosecution counsel informed the court that the reports confirmed that the accused persons are Tanzanian nationals who have stayed in Kenya for over 15 years. The 1st accused person lived in Bondeni in Mombasa with his family and school going children and he had good community ties.
16. With respect to the 2nd accused person, the report indicated that he is also a resident of Bondeni and had good community ties. The local community said he is a respectful old man without any previous records. He had been a resident of Kaloleni and on most days he was in his home.
17. The prosecution therefore asked that the bail reports be adopted and a condition of bail be made that each accused person provides a Kenyan surety. The learned defence counsel agreed with the sentiments by the prosecution counsel on the release of the accused persons on bond.
18. The learned trial magistrate then observed that the applicants were Tanzanian nationals and reserved a date for ruling which was delivered on 28/3/2025. The learned trial magistrate considered the issue of release of the applicants on bond and found that they were not suitable. The learned trial magistrate then concluded that due to the gravity of the charge, the fact that the accused persons’ work involves cross-border travel and that they are not nationals of Kenya, then they were a high flight risk. The learned magistrate therefore found that these were compelling reasons to deny the applicants bond. She however directed that the hearing will be expedited due to that determination.
19. There is no doubt that the setting of bond terms is at the discretion of the trial court. In the case of Ferdinand Ndung’u Waititu Babayao v Republic [2019] KECA 93 (KLR) the High Court in explaining the exercise of this discretion held that before interfering with the exercise of that discretion this court must be cautious. That the High Court could only interfere if the decision was shown to be plainly wrong or granted without consideration of relevant factors. The learned judge stated:
“It is trite that the setting of bond or bail amounts is an exercise of discretion by the trial court and before interfering with that exercise this court must be cautious as was ably enunciated by Baroness Hale, as she then was, in Re J (A Child) (Child Returned Abroad: Convention Rights) [2006] UKHL 4, that:
“If there is indeed a discretion in which several factors are relevant, the evaluation and balancing of those factors is … a matter for the trial [Magistrate]. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: … Too ready an interference by the appellate court, …., risks robbing the trial [Magistrate] of the discretion entrusted to him by law.”
20. 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. The learned trial magistrate properly appraised herself of these provisions.
21. In the case of Republic -vs- David Nyasora Nyamongo – Criminal Case No.90 of 2010 (unreported) in the High Court sitting at Kisii, Makhandia J (as he then was) stated thus: -
“At the end of the day however whether or not an accused should be admitted to bail, is largely a matter of discretion of the court to be exercised in terms of the constitution, the law applicable, taking into account the gravity of the offence, the risk of absconding, the risk of influencing witnesses, the overriding consideration of granting bail which is whether the accused will turn up for the hearing of his case once granted bail. Again, the court must bear in mind the other principal purpose for the granting of bail which is to reinforce the cardinal principle of criminal law that an accused is presumed innocent until the contrary is proved. Therefore, unless there are compelling reasons for not doing so pending such trial, the accused ought to be released on bail.”
22. The burden to offer the compelling reasons for denial of bond falls upon the prosecution who are required to discharge it on a balance of probabilities. In the case of Republic v Dominic Muhangani [2015] eKLR the Court in allowing the application for bail pending trial stated:
“It is the duty of the prosecution to offer such compelling reasons. Where no such reasons are given the court ought to exercise its discretion in favour of granting the accused bond…”
23. The Judiciary’s Bail and Bond Policy Guidelines sets out judicial policy on bail and provides that it is upon the prosecution to satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail.
24. In the present case, the prosecution had no objection to the granting of bond to the accused persons, only requiring that they provide Kenyan sureties. The learned trial magistrate found that from the bail reports, the accused persons were long distance driver and conductor respectively and plying the Kenyan-Tanzanian highway and that meant they are constantly outside the jurisdiction of the court and so it would not be easy to keep them within the jurisdiction of the court. However, that finding was clearly against the findings in the respective bail reports that the accused persons had good community ties within their respective places at Bondeni where they had resided for over 15 years with the 1st accused person having a family with school going children and the 2nd accused person always within his residence.
25. The learned trial magistrate also found that imposing bond terms for them to deposit their passports in court would curtail their movement and thus their right to earn a living. That finding however reinforces the fact that denying them bond curtails their right to earn a living even more. Perhaps in the former case, they would probably seek alternative means unlike detaining them in custody as is the case herein.
26. Learned counsel submits that the applicants are ready and willing to abide by the bond terms fixed. In view of the fact that the prosecution whose duty it is to offer compelling reasons to deny bond had no objection to the same, and the favorable bail reports for each of the applicants. I find that the learned trial magistrate was in error to deny them bond when there were no compelling reasons. She gave too much weight to the fact that the applicants are foreigners and involved in cross-border transport work without considering the bail reports tendered showing that in spite of the same, they had places of abode in Mombasa from where they would be readily available to attend court when required.
27. 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.
28. 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.).
29. Where the trial court has denied an accused person bond/bail as provided for under section 123 CPC and the Bail and Bond Policy Guidelines, the accused person has statutory recourse to this court.
30. 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.”
31. In the premises, I find that the learned trial magistrate fell in error when she failed to admit the applicants on bond when it had not been demonstrated to the court that there were compelling reasons to deny bond. I find that the application herein has merit. The decision of the learned trial magistrate is therefore set aside and substituted with an order admitting the applicants on bond on the following terms:
a. Each of the two applicants shall provide 2 Kenyan sureties of one million shillings each to be approved by the Deputy Registrar of the Court. The Deputy Registrar of this Court will proceed to examine the said surety for suitability to secure the attendance of the applicant at trial.
b. Each applicant shall deposit his passport and any other travel document in his possession with this court but to be transmitted to the trial court, after approval of the sureties, for safe custody and eventual return to the applicant when ordered so.
c. Each of the applicants shall not leave the jurisdiction of the trial court without an order of the trial court.
d. Each of the applicants shall furnish the Deputy Registrar of this court, which information shall be passed to the trial court, with evidence of his place of residence within Kenya and inform the trial court whenever he changes such residence.
e. Each applicant shall attend the trial court for the mention of their case once every month before the trial court.
32. Orders accordingly.
Ruling delivered, dated and signed at Kwale on the Virtual Platform, Teams this 23rd day of April 2025
HON. ANDAYI W. F.
JUDGE
This ruling is transmitted to the parties by posting on the court CTS system as earlier communicated in the directions.
2. The applicants are jointly charged before the magistrate’s court with the offence of trafficking in narcotic drugs under Section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 63A) Laws of Kenya that on 5/2/2025 at Msambweni area within Kwale County jointly with others not before court were found trafficking in narcotic drugs namely Canabis sativa (Bhang) to wit 19.968 Kilograms with a market value of KShs 599,040/= (Five hundred and ninety nine thousand and fourty shillings) wrapped and packed in twenty blue nylon paper foils by transporting in a motor vehicle registration number T940 DNU Mitsubishi Rosa bluish in colour in contravention of the provisions of the above said Act.
3. In denying bond for both applicants, the trial court found that the charge facing the two is serious with attendant heavy punishment of a fine of not less than fifty million or imprisonment for a term of not less than fifty years imprisonment and also that the two are Tanzanian nationals involved in cross-border travel as a long-distance driver and conductor respectively. For these two reasons, the learned trial magistrate found that the two were a flight risk and therefore likely to abscond court attendance if released on bond. The trial court therefore declined to release them on bond.
4. The applicants therefore pray that pending the hearing and determination of this application this court to stay proceedings in the said case pending before the Msambweni Magistrate’s Court and to revise and set aside the ruling of the Msambweni Magistrate Court delivered on 28th March 2025 by Hon. L.W. Kabaria, Principal Magistrate, denying the applicants bail/bond, and in its place issue an order admitting the applicants to bail/bond on reasonable terms and to grant any further orders as it deems fit and just in the circumstances.
5. The application is brought under articles 49(1)(h), 50, and 159 of the Constitution of Kenya, sections 362 and 364 of the Criminal Procedure Code, (Cap 75) Laws of Kenya, and all other enabling provisions of the law and supported by the grounds as laid out on the face of the record. There are affidavits in support of the application purportedly sworn by each of the applicants but I am not satisfied that the impressions appearing against their respective names were appended by each of them as required under the Oaths and Statutory Declarations Act (Cap. 19) Laws of Kenya. The impressions are neither handwritten nor electronic signatures for the respective deponents. They appear to be rubber stamp impressions. I will therefore not consider the affidavits as supporting the application. That leaves the grounds on the face of the application which are summarized as follows that:
a. that the decision by the learned trial magistrate to deny the applicants bail/bond citing their status as Tanzanian nationals, the nature of their work involving cross border travel, and the gravity of the offence as compelling reasons was in error.
b. that the learned trial magistrate failed to adequately consider the applicants’ strong community ties in Kenya, as evidenced by the pre-bail reports, and the availability of Kenyan sureties to secure their attendance.
c. that the learned trial magistrate misdirected herself by concluding that the applicants’ work as a long-distance truck driver and conductor, respectively, inherently makes them flight risks, without exploring conditions such as passport surrender or regular reporting to ensure their presence.
d. that the applicants were not afforded a fair opportunity to address the court on alternative bail conditions that could mitigate any perceived flight risk, contrary to their right to a fair hearing under Article 50 of the Constitution.
e. that the denial of bail infringes on the applicants’ constitutional right under Article 49(1)(h) to be released on bail or bond on reasonable conditions, absent compelling reasons, which were not sufficiently established in this case.
f. that the applicants are willing to abide by any reasonable bail conditions imposed by this court to ensure their attendance at trial.
g. that the continued detention of the applicants causes undue hardship, particularly to the 1st Applicant’s family, who reside in Kenya, and violates the principle of presumption of innocence.
h. The Court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR)) but this court gave the parties the opportunity to make written submissions which learned counsels for the applicant did but the respondent did not.
6. Learned counsel for the applicant has submitted on the applicants’ constitutional right to be released on bond pending trial under Article 49(1)(h), right to be presumed innocent until the contrary is proved under Article 50(2)(a).
7. Learned counsel submits that the learned trial magistrate failed to consider that each of the applicants had strong community ties in Kenya and each of them had also secured a Kenyan surety as shown in the respective bail reports.
8. Learned counsel reiterates that the purpose of bond is to secure the attendance of an accused person at trial. For these reasons, learned counsel submits that it was erroneous for the trial court to conclude that they were a flight risk only due to their mode of work, being long-distance driver and conductor respectively.
9. I have considered the application, the grounds in support thereof and the submissions by learned counsel. The issue for determination is whether or not there is reason for this court to exercise the revisionary powers to review the decision of the trial court denying the applicants bond.
10. 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.
11. 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.”
12. 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) …
13. The trial court record shows that at the time when the accused persons took plea on 10/2/2025 and after the learned counsels for the applicants applied for the release of the applicants on favourable bond/bail terms, the court prosecutor initially informed the court that the prosecution was opposed to the release of both applicants on bond at that time as they were not Kenyan nationals. She sought that a bail report be made available first. When learned counsel for the 1st accused person informed the court that this was not a ground to oppose the release of an accused person on bond and that there was no affidavit to oppose the same, the learned prosecution counsel informed the court that the accused persons could be released on bond if they made available Kenyan sureties.
14. The plea court then made observations on why it was not prudent to have the accused persons detained to wait for a bail report and directed that the same be made available.
15. The bail report was made available on 12/3/2025 before the trial court to which the matter had been allocated by the plea court. At that time, the learned prosecution counsel informed the court that the reports confirmed that the accused persons are Tanzanian nationals who have stayed in Kenya for over 15 years. The 1st accused person lived in Bondeni in Mombasa with his family and school going children and he had good community ties.
16. With respect to the 2nd accused person, the report indicated that he is also a resident of Bondeni and had good community ties. The local community said he is a respectful old man without any previous records. He had been a resident of Kaloleni and on most days he was in his home.
17. The prosecution therefore asked that the bail reports be adopted and a condition of bail be made that each accused person provides a Kenyan surety. The learned defence counsel agreed with the sentiments by the prosecution counsel on the release of the accused persons on bond.
18. The learned trial magistrate then observed that the applicants were Tanzanian nationals and reserved a date for ruling which was delivered on 28/3/2025. The learned trial magistrate considered the issue of release of the applicants on bond and found that they were not suitable. The learned trial magistrate then concluded that due to the gravity of the charge, the fact that the accused persons’ work involves cross-border travel and that they are not nationals of Kenya, then they were a high flight risk. The learned magistrate therefore found that these were compelling reasons to deny the applicants bond. She however directed that the hearing will be expedited due to that determination.
19. There is no doubt that the setting of bond terms is at the discretion of the trial court. In the case of Ferdinand Ndung’u Waititu Babayao v Republic [2019] KECA 93 (KLR) the High Court in explaining the exercise of this discretion held that before interfering with the exercise of that discretion this court must be cautious. That the High Court could only interfere if the decision was shown to be plainly wrong or granted without consideration of relevant factors. The learned judge stated:
“It is trite that the setting of bond or bail amounts is an exercise of discretion by the trial court and before interfering with that exercise this court must be cautious as was ably enunciated by Baroness Hale, as she then was, in Re J (A Child) (Child Returned Abroad: Convention Rights) [2006] UKHL 4, that:
“If there is indeed a discretion in which several factors are relevant, the evaluation and balancing of those factors is … a matter for the trial [Magistrate]. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: … Too ready an interference by the appellate court, …., risks robbing the trial [Magistrate] of the discretion entrusted to him by law.”
20. 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. The learned trial magistrate properly appraised herself of these provisions.
21. In the case of Republic -vs- David Nyasora Nyamongo – Criminal Case No.90 of 2010 (unreported) in the High Court sitting at Kisii, Makhandia J (as he then was) stated thus: -
“At the end of the day however whether or not an accused should be admitted to bail, is largely a matter of discretion of the court to be exercised in terms of the constitution, the law applicable, taking into account the gravity of the offence, the risk of absconding, the risk of influencing witnesses, the overriding consideration of granting bail which is whether the accused will turn up for the hearing of his case once granted bail. Again, the court must bear in mind the other principal purpose for the granting of bail which is to reinforce the cardinal principle of criminal law that an accused is presumed innocent until the contrary is proved. Therefore, unless there are compelling reasons for not doing so pending such trial, the accused ought to be released on bail.”
22. The burden to offer the compelling reasons for denial of bond falls upon the prosecution who are required to discharge it on a balance of probabilities. In the case of Republic v Dominic Muhangani [2015] eKLR the Court in allowing the application for bail pending trial stated:
“It is the duty of the prosecution to offer such compelling reasons. Where no such reasons are given the court ought to exercise its discretion in favour of granting the accused bond…”
23. The Judiciary’s Bail and Bond Policy Guidelines sets out judicial policy on bail and provides that it is upon the prosecution to satisfy the court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail. The Prosecution must, therefore, state the reasons that in its view should persuade the court to deny the accused person bail.
24. In the present case, the prosecution had no objection to the granting of bond to the accused persons, only requiring that they provide Kenyan sureties. The learned trial magistrate found that from the bail reports, the accused persons were long distance driver and conductor respectively and plying the Kenyan-Tanzanian highway and that meant they are constantly outside the jurisdiction of the court and so it would not be easy to keep them within the jurisdiction of the court. However, that finding was clearly against the findings in the respective bail reports that the accused persons had good community ties within their respective places at Bondeni where they had resided for over 15 years with the 1st accused person having a family with school going children and the 2nd accused person always within his residence.
25. The learned trial magistrate also found that imposing bond terms for them to deposit their passports in court would curtail their movement and thus their right to earn a living. That finding however reinforces the fact that denying them bond curtails their right to earn a living even more. Perhaps in the former case, they would probably seek alternative means unlike detaining them in custody as is the case herein.
26. Learned counsel submits that the applicants are ready and willing to abide by the bond terms fixed. In view of the fact that the prosecution whose duty it is to offer compelling reasons to deny bond had no objection to the same, and the favorable bail reports for each of the applicants. I find that the learned trial magistrate was in error to deny them bond when there were no compelling reasons. She gave too much weight to the fact that the applicants are foreigners and involved in cross-border transport work without considering the bail reports tendered showing that in spite of the same, they had places of abode in Mombasa from where they would be readily available to attend court when required.
27. 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.
28. 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.).
29. Where the trial court has denied an accused person bond/bail as provided for under section 123 CPC and the Bail and Bond Policy Guidelines, the accused person has statutory recourse to this court.
30. 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.”
31. In the premises, I find that the learned trial magistrate fell in error when she failed to admit the applicants on bond when it had not been demonstrated to the court that there were compelling reasons to deny bond. I find that the application herein has merit. The decision of the learned trial magistrate is therefore set aside and substituted with an order admitting the applicants on bond on the following terms:
a. Each of the two applicants shall provide 2 Kenyan sureties of one million shillings each to be approved by the Deputy Registrar of the Court. The Deputy Registrar of this Court will proceed to examine the said surety for suitability to secure the attendance of the applicant at trial.
b. Each applicant shall deposit his passport and any other travel document in his possession with this court but to be transmitted to the trial court, after approval of the sureties, for safe custody and eventual return to the applicant when ordered so.
c. Each of the applicants shall not leave the jurisdiction of the trial court without an order of the trial court.
d. Each of the applicants shall furnish the Deputy Registrar of this court, which information shall be passed to the trial court, with evidence of his place of residence within Kenya and inform the trial court whenever he changes such residence.
e. Each applicant shall attend the trial court for the mention of their case once every month before the trial court.
32. Orders accordingly.
Ruling delivered, dated and signed at Kwale on the Virtual Platform, Teams this 23rd day of April 2025
HON. ANDAYI W. F.
JUDGE
This ruling is transmitted to the parties by posting on the court CTS system as earlier communicated in the directions.