https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9214

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E081 OF 2026** BONFACE MADENDE ZINJENGA…………………………….APPLICANT VERSUS REPUBLIC…………………………………………………………RESPONDENT **RULING.** 1. The applicant is charged before the trial court with the offence of trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. 2. Upon taking plea, the applicant applied to be released on bail pending trial. In a ruling delivered on 2nd September 2025, the learned trial magistrate declined the application and ordered that he remain in custody pending the hearing and determination of the case. 3. Aggrieved by that decision, the applicant filed the present application seeking revision of the trial court's orders under sections 362 and 364 of the Criminal Procedure Code. He contends that the trial court erred in treating the existence of an unrelated traffic accident case as a basis for denying bail. He further argues that the prosecution failed to demonstrate compelling reasons to warrant the denial of his constitutional right to bail and maintains that he is willing to comply with any conditions that the Court may impose to secure his attendance during trial. 4. I have carefully perused the lower court record, the impugned ruling and the material placed before this Court. The right to bail is guaranteed under Article 49(1)(h) of the Constitution, which provides: **"An arrested person has the right —** **(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released."** 1. The burden rests upon the prosecution to demonstrate the existence of compelling reasons that justify limiting that constitutional right. The Bail and Bond Policy Guidelines further provide that the determination of whether compelling reasons exist must be made on the basis of the particular facts and circumstances of each case, having regard to such considerations as the likelihood of the accused attending trial, interference with witnesses, protection of victims, public order, and the administration of justice. 2. The record shows that the principal reason relied upon by the trial court in declining bail was the existence of a pending traffic accident case involving the applicant. With respect, I find that the mere existence of another pending criminal case does not, without more, constitute a compelling reason within the meaning of Article 49(1)(h) of the Constitution. There was no evidence placed before the trial court demonstrating that the applicant had previously absconded, breached bond terms, interfered with witnesses, or otherwise obstructed the course of justice in that matter. 3. Equally significant is the pre-bail report on record, which is favourable to the applicant. The report recommends his release on bond and does not disclose any concerns regarding his likelihood of absconding, interference with witnesses, or any threat to public safety. The favourable findings in the report were not displaced by any cogent evidence from the prosecution. 4. Although the applicant faces a serious charge under the Narcotic Drugs and Psychotropic Substances (Control) Act, the seriousness of the offence, standing alone, cannot amount to a compelling reason for denial of bail. The constitutional presumption of innocence under Article 50(2)(a) remains operative until the applicant is proved guilty after trial. 5. Upon an independent evaluation of the record, I am not satisfied that the prosecution discharged its burden of establishing compelling reasons to justify the continued denial of bail. The learned trial magistrate therefore exercised her discretion on an improper basis by treating the existence of an unrelated pending traffic case as determinative, notwithstanding the favourable pre-bail report and the absence of evidence demonstrating any real risk to the administration of justice. That constitutes an error warranting this Court's intervention in exercise of its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code. 6. Accordingly, the application dated 18th December 2025 succeeds. The ruling of the trial court dated 2nd September 2025 declining to admit the applicant to bail is hereby set aside. 7. The applicant shall be released on bond of Kenya Shillings Three Million (Kshs. 3,000,000) with one surety of a similar amount, to be approved by the trial court. Upon release, the applicant shall report to the investigating officer every month on a date to be agreed upon and shall attend court whenever required until the conclusion of the trial. In the event of any breach of the bond terms, the trial court shall be at liberty to take such action as is authorised by law. Orders accordingly. **Ruling dated and delivered virtually this 29th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Okumu for the Applicant Mutuma for the Respondent Karimi Court Assistant.