Bright v Republic (Revision Case E050 of 2026) [2026] KEHC 13292 (KLR) (21 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **REVISION NO. E050 OF 2026** **IN A MATTER BEFORE CHIEF MAGISTRATE'S COURT AT CRIMINAL CASE E169 OF 2026.** **PROSPE KINGSE ROGE BRIGHT-------------------------------APPLICANT** **VERSUS** **REPUBLIC-----------------------------------------------------------RESPONDENT** **RULING** 1. The applicant by way of a Notice of Motion under Article 50(2) of the Constitution and section 362 and 364 of the CPC sought the review of a bail orders. 2. The applicant argued that he is a remandee at the Industrial Area prison having been committed to the facility after he was unable to meet the bail terms imposed by the trial court. 3. The applicant faced three counts;- **i) Conspiracy to defraud contrary to section 317 of the penal code cap 65 laws of Kenya,** **ii) Acquisition of proceeds of crime contrary to section 4(a) as read with section 16(1)(a) of the proceeds of crime and anti-money laundering Act, chapter 59A Laws of Kenya and** **iii) acquisition pf proceeds of crime contrary to section 4(a) as read with Section 16(1)(a) of the proceeds of crime and anti-money laundering act, chapter 59 A laws of Kenya.** 1. The applicant pleaded with this Honorable Court to find it prudent to revise the lower court bond and bail terms of Kenya Shillings five hundred thousand and two sureties to more lenient and favorable amount. 2. In support of his application the applicant swore an affidavit and deposed as follows;- **a).** that he is a foreign national, Congolese. **b)**. he married to a Kenyan lady. **c).** he is currently held at Nairobi Remand Home. **d).** That the court should find it prudent to review the Milimani Chief Magistrate court's bond terms of ksh 500,000/= and two sureties to a lower amount preferably ksh 200,000/= **e).** that he is the sole provider of his family. **f).** that his wife is economically incapable of raising ksh 500,000/= for bail. 1. At the hearing of the instant application the court sought to know from the applicant whether he had moved the trial court to revisit the issue of bail and he told this court that the court declined and told him to move to this court hence this revision application. **ANALYSIS AND DETERMINATION** 1. The High Court exercise supervisory jurisdiction over the trail courts under Article 165(6) of the Constitution. The authority of the High Court is reinforced in statute through the provisions of Section 362 as read together with 364 of the Criminal Procedure Code. 2. The trial magistrate having exercised discretion in granting bail this court on a revision would only look at the regularity, correctness, legality or propriety of the orders granted by the trial court and satisfy itself as to whether the court acted within the law. 3. The duty of proving that the court erred in its decision lies with the p[arty seeking revisionary orders. 4. In the case of **Republic vs. Samuel Gathuo Kamau [2016] eKLR,** the Court discussed the supervisory jurisdiction of the High Court at length and observed as follows; “Needless to say, that supervisory jurisdiction is exercised as may be provided by law by way of appeal, revision, etc… it does not include any perceived power to make a decision on behalf of a subordinate Court... In the case of appeals, the supervisory power is exercised in respect to conviction, sentence, acquittal (section 347, 348 and 348A of the Criminal Procedure Code). As for revision, the supervisory jurisdiction is exercised in respect to findings, sentences, orders and regularity of any proceedings see Article 165 (7) of [*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) and sections 362 and 364 of Cap 75…” 5. The High court does not therefore sit to substitute its own decision with that of the Magistrate. The exercise of judicial discretion would only be done where the learned Hon. Magistrate is shown to have misdirected himself or herself on the principles applicable in granting bail or that the court in determining the matter took it account irrelevant matters or failed to take into account relevant matters thus leading to the wrong conclusion in law. 6. In the case of **Republic vs James Kiarie Mutungei [2017] eKLR** Nyakundi J. held thus; “the rationale of the High Court as a revisionary authority can be initiated by an aggrieved party or suo moto made by the Court itself, to call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, propriety or correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high Court to rehear the case and evaluate the evidence in totality by the lower Court to come with a decision on the merits.” 7. The courts in determining bail applications are to be guided by the following policy guidelines. **Bail and Bond Policy Guidelines:** 3. **General Principles** 3.1 Bail and bond decision-making shall be guided by the following principles, which are derived from international best practices:20 (a) **The right of accused person to be presumed innocent.** Every accused person shall be presumed innocent (Article 50(2) of the Constitution). This is the primary rationale for the requirement of the Constitution that an arrested person has the right to be released on bail or bond. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts. In this respect, the International Covenant on Civil and Political Rights (ICCPR) provides that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”21 Further, the ICCPR states that accused children should be separated from adults and brought as speedily as possible for adjudication.22 (b) **Accused Person’s Right to Liberty.** Every accused person has the right to liberty. As a general rule, therefore, every accused person should not be detained, but should be released subject to his/her guarantee to appear for trial. Pretrial detention should therefore be a measure of last resort, and the criminal justice institutions should make every reasonable effort to avoid pretrial detention.23 (c) **Accused’s obligation to attend trial.** Bail and bond provide guarantees that accused persons will attend trial. They are securities that aim to procure the release of an accused person from legal custody together with an undertaking that he or she will appear for trial. (d) **Right to Reasonable Bail and Bond Terms:** Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.24 Since the ultimate goal of bail or bond is to guarantee that an accused person attends his or her trial, it is important to underscore that Article 49(2) of the Constitution does not necessarily mean that all persons accused of committing offences that are punishable by a fine only or by imprisonment for not more than six months are entitled to free bonds or release on personal recognizance. Accordingly, in this context police officers and judicial officers have the power to impose appropriate bail or bond terms when releasing such offenders. Unless they do so, “there is a real probability that many persons who are charged with offences that attract only fines or that attract imprisonment for six months or less, will not bother to turn up in court for their trials [thereby increasing] the volumes of pending cases in leaps and bounds.”25 (e) **Bail determination must balance the rights of the accused persons and the interest of justice.** On the one hand, police officers and judicial officers should endeavor to preserve the liberty of an accused person, who is presumed to be innocent and should be allowed to keep the fabric of his or her life intact by, for example, maintaining employment and family and community ties. Preserving the liberty of an accused person also permits him or her to take an active part in the planning of his or her defense. On the other hand, the State has a duty to prosecute those who commit crimes, which may entail qualifying the individual right to liberty. The State has a duty to ensure public safety between the time of arrest and trial of accused persons, and a duty to protect the integrity of the criminal justice system. This means that where there is convincing evidence that an accused person may undermine the integrity of the criminal justice - system, by, for example, intimidating witnesses or interfering with the evidence, then a need arises to either deny such a person bail or bond, or set stringent bail or bond terms. Equally, where there is convincing evidence that the accused person will endanger a particular individual (for example, victims of the crime) or the public at large, or even commit a serious crime, it also becomes necessary to subject an accused person to pretrial detention. The interests of justice therefore demand the protection of the investigation and prosecution process against probable hindrance by accused persons. It is therefore important for police officers and judicial officers to appreciate that the public have an interest in the effective prosecution of offences. In appreciating the need to balance the rights of accused persons with the interests of justice, the Constitution states that an accused person can only be denied bail or bond where the court establishes that there are compelling reasons not to be released. That is, while the Constitution stipulates that every accused person is presumptively entitled to bail or bond, it permits the denial of bail or bond where the prosecution presents convincing evidence to justify such denial. In denying an accused person bail or bond, it must therefore be demonstrated with convincing evidence that his or her release will present risks, and that such risks cannot be managed, even with the attachment of appropriate conditions. (f) **Consideration for the rights of victims.** Police officers and judicial officers should consider the views of victims before making decisions that affect them. In particular, police officers and judicial officers should consider the safety of victims and victims’ families in fixing the amount of bail and the release conditions for suspects and accused persons. Second, victims should be informed about bail conditions imposed on suspects and accused persons, particularly those designed to protect victims and victims’ families. Third, victims who have so requested should be kept informed about any bail applications made by suspects and accused persons, and the outcomes of such applications. 1. The High court therefore runs an objective test to determine whether the trial courts orders were made in line with the stated policy guidelines in mind. 2. The learned trial court is also expected to consider the provisions of Section 123A of the Criminal Procedure Code which read;- **123A. Joinder of two or more accused in one charge or information** (1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular— **(a)** the nature or seriousness of the offence; **(b)** the character, antecedents, associations and community ties of the accused person; **(c)** the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and; **(d)** the strength of the evidence of his having committed the offence; **(2)** A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person— **(a)** has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody; **(b)** should be kept in custody for his own protection. 1. The purpose of bail is to ensure that the accused person turns up for trail once released on bail. Bail must not be excessive and should not be used as some form of pre-trial punishment by the police or the trial court. 2. The court thus would have to address itself to the seriousness of the offence as well as consider the personal circumstances of an accused person are taken into account. 3. The Criminal Procedure Code under Section 124 provides**;-** Before a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and, when he is released on bail, by one or more sufficient sureties, conditioned that the person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or police officer. 4. The High Court thus sitting on Revision should undertake an objective assessment of the orders made by the trial court and once the court is satisfied that there is no impropriety, irregularity, incorrectness or illegality is established, the court would not interfere with the trial courts orders. 5. This court has scrutinized the application by the accused and the reasons advanced in support of the application. 6. The offences with which the accused person is charged are serious and the terms granted by the lower court do not appear in the opinion of this court excessive to warrant a review by this court. 7. The applicant is a foreigner thus a requirement for a bond of Ksh 500,000 plus two sureties of a similar amount is reasonable. The accused person during the hearing of this application told the court that has no visa to remain in the country and the question that arises is; how has he been operating in the country and if as he said he has been on a temporary pass, what then is the guarantee that he will remain in the country and return for his trial? 8. The prosecution did not express any reservation about his release on bail in the circumstances thus the terms imposed by the Hon. Magistrate are hereby retained. The application fails and is hereby dismissed. 9. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 21st day of AUGUST 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Applicant present in person Mogere for the Respondent