https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11858

Njue v Republic (Criminal Revision E043 of 2026) [2026] KEHC 11858 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEHC 11858 (KLR) Republic of Kenya In the High Court at Embu Criminal Revision E043 of 2026 RM Mwongo, J July 29, 2026 Between Anthony Muthike Njue Applicant and Republic Respondent Ruling The Application 1.Through an application dated 02nd April, 2026, the applicant is seeks the following orders:1.Spent;2.Spent;3.That this Honorable Court be pleased to call for and examine the record of proceedings in Siakago Criminal Case No E004 of 2026 for purposes of satisfying itself as to the correctness, legality and propriety of the order canceling the Applicant's bail/bond;4.That this Honorable Court be pleased to revise and set aside the order of the trial court canceling the Applicant's bail/bond;5.That this Honorable Court be pleased to reinstate the Applicant to bail/bond on the same terms as before its cancellation; and6.That such other of further orders be made as the Court may deem fit in the interests of justice. 2.The application is based on the grounds that, after he was charged with the offence of malicious damage to property contrary to section 339(1) of the Penal Code, the trial court cancelled the appellant’s bail on the application of the complainant’s advocate. He stated that the complainant’s advocate argued that cancellation of bail was necessary because the applicant would interfere with witnesses. He also asserted that the trial court, in reaching this finding, wholly relied on the arguments made by the state only. That it was necessary that the orders of the trial court cancelling his bail be revised by this court. He denied threatening any witnesses or having any such intention. Replying Affidavit 3.The prosecution counsel filed a replying affidavit stating that the application is misconceived and that the trial court correctly exercised its discretion in the matter. That the applicant’s bail was cancelled since he was a likely threat to the prosecution witnesses. It was her assertion that bond terms are not absolute and that they can be reviewed or cancelled whenever the court deems it necessary. It was the respondent’s case that the High Court’s revisionary jurisdiction should not be exercised in this case since the applicant has failed to demonstrate any impropriety, illegality, incorrectness or irregularity in the trial court’s decision to cancel the applicant’s bail terms. 4.It stated that if the court revises the findings of the trial court within this revision application, it will result in unnecessary delay in hearing and determination of the criminal case. That it is in the interest of justice that the application herein be dismissed to make room for the hearing to be completed. Parties’ Submissions on the application 5.The applicant relied on the grounds deposed in the supporting affidavit to the revision application. He stated that his rights to bail/bond are protected under Article 49(1) of the Constitution. That the bail was cancelled without the trial court being satisfied through evidence that he was indeed a threat to the prosecution witnesses and this was unfair. That the court allowed the application of Mr. Munene who was watching brief for the complainant but no evidence was presented to support that application. He relied on the cases of Republic v Asbel Kiprop Malel [2014] eKLR, Patrick Muthuri Mwenda v Republic [2022] KEHC 859 (KLR) and Mugo v Director of Public Prosecution [2024] KEHC 5891 (KLR). 6.The respondent submitted that the applicant’s right to bail was not absolute and that it could be limited where the court deems it fit to do so. It referred to the trial court proceedings and stated that the court explained that the bail terms were cancelled for apprehension that the applicant would interfere with witnesses. Issue for Determination 7.The issue for determination is whether the application has merit. Analysis and Determination 8.The court has been moved to exercise its revisionary powers over an order of the subordinate court cancelling bail and bail terms on apprehension that the applicant would interfere with the prosecution witnesses. The power of the High Court is bestowed to it under Article 167(6) & (7) of the Constitution which provides:“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” 9.Further, Section 362 of the Criminal Procedure Code provides as follows on the High Court’s supervisory jurisdiction:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” (Emphasis added) 10.From a perusal or the trial court proceedings, the court recorded that Mr. Munene who was appearing for the family of the complainant, told the court that some witnesses in the case had informed him that the applicant was interfering with them. He had the matter reported to the police and he obtained OB No. 09/20/01/26 at Kiambere Police Station. On that basis, he prayed for cancellation of bail terms. The applicant denied the allegations and stated that he was a village elder and had done no such thing. 11.In its ruling, the court noted that the witnesses were fearing for their lives and that they had refused to attend court unless their advocate was present. The Court took the OB evidence and statements by Mr. Munene and satisfied itself that the applicant’s bail terms ought to be cancelled. The court supported its finding with the provisions of the Judiciary Sentencing Policy Guidelines. 12.Article 49(1)(h) of the Constitution provides for the right of an accused person to bail pending trial as follows:“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.” (Emphasis added)This means that the right to bail may be limited only if there are compelling reasons to limit it. 13.A compelling reason is not merely an allegation. In the case of Michael Juma Oyamo & another v Republic [2019] KECA 953 (KLR) the Court of Appeal adopted the meaning of the phrase “compelling reasons” as was stated in the case of R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 where the Learned Judge held thus; -“….. The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standards set by the Constitution.” (Emphasis added) 14.Where an accused person had been released on bail and then the bail was cancelled, certain factors have to be considered. In Republic v Diana Suleiman Said & another [2014] KEHC 3724 (KLR), the court stated:“The principles in considering review or cancellation of bailRelying on Supreme Court of India decision in Gulabrao Baburao Deokar v. State of Maharastra and Ors. Criminal Appeal 2113 of 2013, the prosecution urged the grounds for cancellation of bail broadly as interference or attempt to interfere with due course of administration of justice or evasion of abuse of concession granted to an accused; where there is a clear possibility of the accused intimidating witnesses; and where the interest of the society in general outweighs the right of the accused. Counsel for the accused urged the court not to follow the decision of the Supreme Court of India based on Constitution of India which was promulgated in the 1940s. I however find the principles enunciated in the case to accord to our own position having regard to the Article 24 limitation of rights in the interests of others. The Supreme Court of India in the Deokar case cited its previous decision in Masroor v. State of Uttah Pradesh and Anor. 2009) (14) SCC 286 as follows:“There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned.”I consider that the principles generally of the accused’s ability or propensity to interfere with the due administration of justice having regard to the circumstances of the case and the considerations of the society or public interest are matters to be considered in considering a review of bail. See also Aboud Rogo Mohamed & Another v. R, Nairobi HCCR.C. No. 793 of 2010 and The Defence Forces Council & 6 Others v. Gabriel Kirigha Chawana & 26 Others, Court of Appeal Civil Application No. 9 of 2014.” (Emphasis added) Conclusions and Disposition 15.In the present case, the trial court was presented with Police OB Number indicating that the possible witness interference was reported at the police station. The applicant denied making any threats. However, he presented no rebuttal evidence. The trial court relied on the OB suggesting witness intimidation as a ground that amounts to a compelling reason to limit the applicant’s right to bail. 16.Therefore, the ruling of the trial court cancelling bail had proper grounding and ought not be called up for revision in this Court. There is therefore no basis for staying proceedings before the trial court, or interfering with the trial court’s discretion and decision. 17.Accordingly, I am of the considered view that the application should and is hereby dismissed, and the trial court’s decision is hereby upheld. 18.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 29TH DAY OF JULY, 2026..............R. MWONGOJUDGEDelivered in the presence of:Applicant Present in CourtNdolo for the ApplicantFrancis Munyao - Court Assistant