https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9256

Osuji v Republic (Criminal Revision E027 of 2026 & Miscellaneous Criminal Application E094 of 2026 (Consolidated)) [2026] KEHC 9256 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9256 (KLR) Republic of Kenya In the High Court at Kibera Criminal Revision E027 of 2026 & Miscellaneous Criminal Application E094 of 2026 (Consolidated) DR Kavedza, J June 30, 2026 Between Daniel Chinomso Osuji Applicant and Republic Respondent Ruling 1.The Applicant filed the application dated 18th May 2026 seeking revision of the trial court's order denying him bail. He also filed a similar application dated 30th April 2026. The two applications were consolidated and are determined in this ruling. 2.The applications are supported by the Applicant's affidavit. He also seeks a review of the bail terms imposed by the trial court. 3.The Applicant deposes that he is a Nigerian citizen lawfully residing in Kileleshwa, Nairobi. He states that he was arrested at Jomo Kenyatta International Airport while preparing to travel to Nigeria for the December holidays. He explains that his visa was nearing expiry and that his travel was intended to facilitate renewal of his travel documents, visit his family and attend to business before returning to Kenya. He denies any intention to abscond. 4.He further states that he cooperated fully with the investigating officers and was subsequently charged before the trial court, where his application for bail under Article 49(1)(h) of the Constitution was declined. He has since remained in custody awaiting trial. 5.The Applicant maintains that he is presumed innocent under Article 50(2)(a) of the Constitution and contends that the prosecution has not demonstrated compelling reasons to justify the continued denial of bail. 6.He further avers that he has exhibited good conduct while in remand, as reflected in the remand custody report, and has a fixed and verifiable residence in Nairobi together with strong community ties, making him amenable to the jurisdiction of the Court. 7.He undertakes to comply with any bail conditions imposed, including reporting requirements. He states that his passport has already been deposited in court and expresses his willingness to surrender any additional travel documents and report to a designated police station or the Nigerian High Commission as directed. He also proposes suitable sureties willing to guarantee his attendance at trial. 8.The Applicant further contends that investigations are substantially complete, the prosecution witnesses have recorded their statements, and there is therefore no likelihood of interference with the prosecution case. He denies any contact with the witnesses and undertakes not to interfere with them. 9.Finally, he states that his continued detention has occasioned severe hardship to his family, as he is the sole breadwinner responsible for supporting his minor children and elderly mother in Nigeria. He maintains that he is not a flight risk and urges the Court to review the impugned order and admit him to bail on reasonable terms. 10.Article 49(1)(h) of the Constitution guarantees every arrested person 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." 11.The burden lies on the prosecution to establish the existence of compelling reasons. Section 123A of the Criminal Procedure Code provides:“(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 fulfilment 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 it is likely that he would fail to surrender to custody; or(b)should be kept in custody for his own protection." 12.Paragraph 4.9 of the Bail and Bond Policy Guidelines states:“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail." 13.I have carefully reviewed the record of the trial court. The Applicant faces a charge of conspiracy to traffic in narcotic drugs contrary to section 4B(A) as read with section 4B(5) of the Narcotic Drugs and Psychotropic Substances (Control) Act. Although the seriousness of the charge alone is not a compelling reason to deny bail, it remains a relevant consideration when weighed together with all the surrounding circumstances. 14.The principal basis upon which bail was declined was that the Applicant is a Nigerian national who was intercepted at Jomo Kenyatta International Airport while preparing to leave the country. The prosecution maintained that he had only recently arrived in Kenya, lacked a permanent fixed abode, and therefore presented a real flight risk. 15.The Applicant, on the other hand, contends that he has lived in Nairobi for several years, resides in Kileleshwa, was travelling lawfully to Nigeria for renewal of his travel documents, business engagements and family visits, and intended to return to Kenya. He further relies on his deposited passport, willingness to comply with reporting conditions, favourable remand reports and the existence of family and community ties within the jurisdiction. 16.The fact that an accused person is a foreign national is not, by itself, a compelling reason to deny bail. However, where foreign nationality is considered alongside other relevant factors, including the absence of strong ties to the jurisdiction, the likelihood of leaving the country, the seriousness of the charge, and the ease with which the accused may evade the jurisdiction of the court, it becomes a material consideration. As observed in Republic v Kokonya Muhssin [2013] eKLR, Republic v Dwight Sagaray & 4 Others [2013] eKLR, Republic v Makoy Madhak Deer [2015] eKLR and Republic v Richard David Alden [2016] eKLR, each application must ultimately be determined on its own peculiar facts. 17.Unlike the cases where the accused demonstrated settled family and residential ties within Kenya, the material placed before the trial court disclosed that the Applicant was arrested while attempting to depart the jurisdiction. The intended destination was his home country, Nigeria, where he admittedly has close family connections. The charge he faces carries severe penal consequences. These factors, viewed cumulatively, were capable of providing an incentive to abscond. 18.Although the Applicant has offered to surrender his passport, furnish sureties and comply with reporting conditions, those undertakings do not sufficiently mitigate the legitimate concern regarding his attendance at trial. The surrender of a passport does not, of itself, eliminate the possibility of absconding, particularly where the accused is a foreign national with established connections outside the jurisdiction. 19.Upon an independent review of the record, I am satisfied that the learned trial magistrate properly directed herself to the applicable constitutional and statutory principles and exercised her discretion judiciously. The finding that the Applicant posed a flight risk was supported by the material before the court and cannot be said to have been arbitrary or founded solely on his nationality. No illegality, impropriety, material irregularity or error of principle has been demonstrated to warrant this court's intervention under sections 362 and 364 of the Criminal Procedure Code. 20.Consequently, I find no basis for interfering with the impugned ruling. The consolidated applications lack merit and are hereby dismissed. The orders declining to admit the Applicant to bail pending trial are upheld.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026 _________________ D. KAVEDZAJUDGEIn the presence of:Applicant AbsentMs. Otiya for the RespondentKarimi Court Assistant.