https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13088

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E087 OF 2026** YUSUF HAJNUR…………………………………………..………1ST APPLICANT RISHAD ADBULRAHIM SHEIKH……………………………….2ND APPLICANT VERSUS REPUBLIC …………………………………………..……………......RESPONDENT **RULING** 1. Before the trial court, the applicants are jointly charged with the offences of conspiracy to traffic in narcotic drugs and trafficking in narcotic drugs contrary to sections 4B (4) as read with 4B (5), and 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994, as amended by the Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022. They pleaded not guilty. In a ruling delivered on 8th November 2025, the trial court declined to admit them to bail pending trial. 2. Aggrieved by that decision, the applicants approached this Court by way of a consolidated application seeking revision of the trial court's orders. Vide a ruling delivered on 25th June 2026, this Court dismissed the application. 3. The applicants have now returned to this Court seeking a review of the earlier decision. Their case is that there has been a material change of circumstances since the previous determination, warranting the Court's intervention. The application is not opposed by the Director of Public Prosecutions. Nonetheless this court has to determine the application on its merits. 4. The law governing the right to bail is settled. Article 49(1)(h) of the Constitution 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. Section 123A of the Criminal Procedure Code further 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.”** 1. The issue for determination is whether the applicants have demonstrated changed circumstances sufficient to warrant a review of the earlier decision. In **Republic v Francis Maina Wairimu [2020] eKLR,** Wakiaga J. held: *“In an application for review for denial of bail, the applicant is under a duty to convince the court that there had been change of circumstances from the time when he was denied bail to warrant the court reviewing its earlier orders.”* 1. The requirement for changed circumstances is not intended to shut the door against a subsequent application for bail. It recognises that circumstances may evolve and that the Court retains jurisdiction to revisit an earlier decision where the factual or legal basis upon which it was made has materially altered. The changed circumstances test is therefore one to be applied to the circumstances obtaining at the time of the fresh application. 2. In the present case, the applicants have placed before the Court circumstances which were either not available or had not crystallised when the earlier application was determined. The 1st applicant has demonstrated that he has a fixed abode in Mombasa and gainful employment in Kenya. His cousin, Mohamed Ali Omari, by an affidavit sworn on 21st July 2026, has confirmed the relationship, his willingness to host the applicant and to stand surety for him. The applicant has further undertaken to comply with any conditions imposed by the Court, including the deposit of his travel documents and reporting to the investigating officer. 3. In respect of the 2nd applicant, Fatma Mohammed Ali, his aunt, swore an affidavit dated 21st July 2026 confirming their relationship and her willingness to stand surety for him. The 2nd applicant has also undertaken to comply with such terms as may be imposed by the Court. 4. The 1st applicant is a British citizen while the 2nd applicant is a dual citizen of Kenya and the United Kingdom. The fact that the 1st applicant is a foreign national, is not a compelling reason for denial of bail. The relevant consideration is whether there is a demonstrated likelihood that he will abscond and fail to attend trial. 5. In **Adedeji & another v Republic [2024] KEHC 1756 (KLR)**, the court held that being a foreigner per se is not an inhibiting consideration in determining whether or not the accused should be released on bail pending trial. Another factor is whether the accused has a fixed abode in Kenya and whether he has property or familial connections in Kenya. Another factor is the nature of the charge that the accused is facing and whether the likely sentence to be meted out may serve as an incentive or impetus for the accused to abscond from the jurisdiction of the court. Also, to be taken into consideration is the antecedent and subsequent conduct of the accused before and after being charged. The factors listed above are by no means exhaustive. Each case will depend on its facts and circumstances. 6. the Court held that being a foreigner is not, by itself, sufficient ground to deny bail where the applicant has a fixed abode and family ties in Kenya, and that attendance may be secured through appropriate conditions. 7. That principle is applicable here. The 2nd applicant has identified a relative willing to host and stand surety for him. The Court can further mitigate any residual concern regarding his attendance by directing that he shall not leave the jurisdiction of the Court or the Republic of Kenya without leave of the Court and by requiring the surrender of his travel documents. 8. More significantly, the prosecution is no longer opposed to the applicants' release on bond. While the position of the prosecution is not determinative, it is a material consideration when assessing whether compelling reasons presently exist to justify continued pre-trial detention. In **Republic v Macharia [2023] KEHC 21779 (KLR),** the Court recognised changed circumstances where the prosecution was no longer opposed to release and the accused had demonstrated that he was not a flight risk. 9. The purpose of bail is principally to secure the attendance of an accused person at trial, and not to punish an accused person before conviction. In the present case, the circumstances which previously militated against the applicants' release have been materially mitigated. They have identified fixed places of abode, persons willing to host and stand surety for them, and have expressed willingness to surrender their travel documents and comply with reporting requirements. There is no allegation before the Court that they have previously breached bail terms or failed to attend court. Most importantly, the prosecution has not demonstrated any present compelling reason warranting their continued detention. 10. In the circumstances, I am satisfied that the applicants have established a material change of circumstances since the ruling of 25th June 2026. The compelling reasons previously advanced have, to the extent relevant, been mitigated by the safeguards now proposed. The applicants' attendance at trial can adequately be secured through reasonable and enforceable bond conditions. 11. Accordingly, the ruling of this Court delivered on 25th June 2026 is hereby reviewed to the extent that the 1st and 2nd applicants shall be admitted to bond pending trial upon the following terms: 12. Each applicant shall execute a bond of Kshs. 5,000,000/= with one surety of a similar amount. 13. In the alternative to (i) above, the 2nd applicant shall be released on a cash bail of Kshs. 2,000,000/= with two contact persons. 14. Each applicant shall surrender his passport and all other travel documents to the trial court, which shall retain the same during the pendency of the trial. 15. A stop order and/or red alert is hereby issued barring the Applicants from travelling outside the jurisdiction of the Court pending the conclusion of the trial. 16. These orders shall be served upon the Immigration Department, by the Investigating Officer who are directed not to issue the Applicants with new or replacement passports during the pendency of the trial. 17. Each applicant shall reside at the fixed abode disclosed to the Court and shall not change his place of residence without notifying the trial court and the investigating officer. 18. Each applicant shall report to the investigating officer every fortnight. Orders accordingly. **Ruling dated and delivered virtually this 25th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**