https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10809

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL REVISION NO.E034 OF 2026 IN THE MATTER OF AN APPLICATION TO REVISE PUNITIVE BOND AND CASH BAIL TERMS GRANTED TO THE APPLICANT IN KIKUYU MCCR.NO.E314 OF 2026 –KIKUYU LAW COURTS GODFREY MWAKASUNGU JOEL ……………………………………………..…….. APPLICANT VERSUS REPUBLIC ………………………………………………………………………………….. RESPONDENT (From the Ruling delivered on 29th April, 2026 and 7th May, 2026 in Kikuyu MCCR E314/2026 – Republic –vs- Godfrey Mwakasungu Joel, before Honourable K. Cheruiyot (SPM) RULING 1. The Applicant, GODFREY MWAKASUNGU JOEL, is aggrieved with the Bail/Bond Decisions and Orders of the Trial Court of 23/04/2026, 29/04/2026 and 07/05/2026 in Kikuyu Magistrates Criminal Case No. E314 of 2026 by which the he as the Accused Person before the Subordinate Court was admitted to Bond in the amount of KShs. 3,000,000.00 and a Cash Bail of the same amount. 2. On 29/04/2026 and 07/05/2026, the Applicant was unsuccessful in his attempts before the Subordinate Court to have the Bail/Bond Terms reduced. Consequently, the Applicant has approached this Court by way of a Miscellaneous Criminal Revision brought by way of the Notice of Motion Application dated 13/06/2026 invoking the revisionary powers bestowed on the High Court and seeking the setting aside of the impugned orders and have the Applicants admitted to revised lower terms. 3. The High Court has jurisdiction to entertain an application for revision and of Kenya the Constitution its power of revision is set out in Article 165 of which provides: “(6)The High Court has supervisory jurisdiction over the subordinate HCCR. REVISION NO.E034 OF 2026 RULING - Page 1 of 6 courts and over any person, body or authority exercising a judicial or quasi-judicial function, but 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.” 4. Section 362 of the Criminal Procedure Code further states: “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”. 5. The High Court has, in exercise of supervisory jurisdiction as revision court, power under section to revise bail orders of the trial court under both the general revisionary jurisdiction of Section 364 and Section 123 (3) of the Criminal Procedure Code, which provides as follows: “123.Bail in certain cases [1].When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part. [2].The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive. HCCR. REVISION NO.E034 OF 2026 RULING - Page 2 of 6 [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.” 6. Section 123A of the Code gives the factors that may influence grant or denial of bail as follows: “123A.Exception to right to bail (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;” 7. The Applicant has been charged with the offence of Trafficking of Cannabis Sativa ( commonly known as Marijuana or ‘Bhang’ ) contrary to Section 4(a) of the Anti-Narcotic Drugs and Psychotropic Substances Control Act. The particulars of the offence are that on 22nd April, 2026 the Applicant was alleged to have been found with 149,000 grams of the substance with an estimated market value of KShs. 4,470,000.00 within the motor vehicle he was operating. 8. From both the Charge Sheet dated 22/04/2026 as well as the Supporting Affidavit dated 13/06/2026 sworn in support of the instant Notice of Motion Application, it is undisputed that the Applicant is a Tanzanian Citizen. HCCR. REVISION NO.E034 OF 2026 RULING - Page 3 of 6 9. It is deponed and argue that the Prosecution did not oppose the grant of bail in the impugned proceedings before the Lower Court. Additionally, the Record of these Revision Proceedings shows that the Prosecution has not filed any Affidavit in opposition and have urged this Court to exercise its revisionary powers with such that if the decision of the Lower Court is interfered with the Applicant should have sureties who will be responsible for his appearances in court. 10.The Prosecution, on 24/06/2026 during the hearing of this Application, described the Applicant as a foreigner with roots in Kenya. 11.On his part, the Applicant at Prayer 2 of the Application seeks “lenient bond terms with alternative of cash bail to the Applicant pending the hearing and determination of KIKUYU MCCR E314 of 2026.” The Applicant has argued that the terms set are inordinately high and a sum of KShs. 200,000.00 would have been affordable. 12.The Applicant states that he has been a Kenyan resident, living and working in Kenya for over 19 years, is married to a Kenyan female with whom they have three children, and due to his arrest and detention their children have been sent home from school for lack of school fees. The Applicant has annexed to his Supporting Affidavit Birth Certificates that evidence the fact his has children who are ostensibly Kenyan Citizens and also a notification that at least one of them has been sent home from school in the month of May 2026 on account of a fees balance. 13.It is my considered view that the purpose of the revisionary powers of the High Court is to correct manifest irregularities or illegalities and give appropriate directions. The Court is also empowered to alter or reverse an order. In exercising discretion to this extent, this Court hereby takes cognizance of the fact the bond and bail terms imposed by the Trial Court clearly fall within the ambit of the seminal guidance by Luka Kimaru J ( as HCCR. REVISION NO.E034 OF 2026 RULING - Page 4 of 6 he then was) in Andrew Young Otieno -vs- Republic [2017] KEHC 8607 (KLR) in which the Learned Judge held as follows: “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.” 14.In the present case, it is clear to my mind that the terms imposed by the Trial Court are manifestly too high and are tantamount to a denial of the constitutional right to bail/ bond albeit under the guise of the grant of the same. The amounts imposed are more within the range of what the High Court imposes for the offence of murder, when it sits as a Trial Court. Such is the deviation by the Trial Courts from what could be considered a reasonable bail/bond amount, and so manifest is the lower court’s error, that this Court takes the view that it would be unjust for this Court to take any other course other than determination of the instant Revision Application in the Applicant’s favour. 15.While offences against Anti-Narcotics Laws are not trivial, and the value of the substances alleged found is high; the presumption of innocence and the imperative that Bail/Bond should be such that it secures attendance by the Accused Person(s) but should not be punitive weighs greater. In that regard, this Court therefore feels justified to interfere with the discretion of the trial court on bail terms herein for being excessive, inordinately high, and disproportionate to the primary object of securing the attendance of the accused at his trial. 16. This Court is also swayed by the fact that the Applicant is the sole- breadwinner of a young family, and his incarceration has been demonstrated to have occasioned negative results on minors, whose best HCCR. REVISION NO.E034 OF 2026 RULING - Page 5 of 6 interests are a paramount concern pursuant to Article 53 of the Constitution. The Applicant has also demonstrated steady employment, roots within the community, and has expressed a commitment to attending the Trial Court as and when he is required. Orders 17.Accordingly, for the foregoing reasons, the Court does pursuant to Sections 123 and 364 of the Criminal Procedure Code revise the bond/bail terms granted by the Trial Court and reduce the same to a Cash Bail of KShs. 300,000.00 with two sureties of the same amount. 18.Orders Accordingly and File Closed Accordingly. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS THIRTIETH DAY OF JUNE 2026 …………………………………………………………… BAHATI MWAMUYE MBS JUDGE In the presence of: Mrs. Atuva for the Applicant Applicant present at Nairobi Medium Ms. Muriu for the State Court Assistant - Martin HCCR. REVISION NO.E034 OF 2026 RULING - Page 6 of 6