https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10072

Vera v Republic (Miscellaneous Criminal Application E090 of 2026) [2026] KEHC 10072 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10072 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E090 of 2026 DR Kavedza, J July 9, 2026 Between Israel Alvarado Vera Applicant and Republic Respondent Ruling 1.The Applicant filed the present Notice of Motion dated 15th October 2026, supported by his affidavit sworn on the same date, seeking review of the trial court's decision denying him bail pending trial. He prays that the impugned orders be set aside and that he be admitted to bail or bond on reasonable terms. 2.The Applicant depones that, following the dismissal of his initial bail application, he renewed the application before the trial court. However, in a ruling delivered on 28th August 2025, the trial court declined to admit him to bail on the ground that there had been no change in circumstances. He contends that an accused person is entitled to renew a bail application and that the trial court erred by failing to consider the merits of the fresh application, thereby occasioning a miscarriage of justice. 3.The Applicant further avers that the proceedings have been delayed due to the court's inability to secure a competent interpreter, resulting in reliance on an interpreter sourced by the accused persons. He contends that this has infringed his right to a fair trial under Article 50 of the Constitution and occasioned repeated adjournments. He also states that, since his arrest, he has secured a permanent residence at Flat No. D6, Sam Plaza, Donholm Estate, which he considers a material change in circumstances. He further argues that the finding that he was a flight risk was speculative and unsupported by evidence. 4.The Applicant depones that only three prosecution witnesses have testified, demonstrating that the trial is unlikely to conclude within a reasonable time. He maintains that the progress of the trial itself constitutes a material change in circumstances warranting a fresh consideration of bail. He further expresses his willingness to provide suitable sureties, comply with any reporting conditions imposed by the Court, and attend court whenever required. 5.The Applicant also contends that he has been subjected to unequal treatment, asserting that while he and another foreign national were denied bail, the remaining co-accused persons were released on bond. He further states that he suffers from medical conditions for which he has not received adequate treatment while in custody and that his release would enable him to access proper medical care and prepare his defence effectively. 6.The application is opposed. The Investigating Officer swore a replying affidavit contending that the Applicant has not demonstrated any new or exceptional circumstances to warrant interference with the trial court's ruling. It is further deponed that the right to bail is not absolute and that the compelling reasons previously found by the trial court remain unchanged. 7.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." 8.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." 9.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." 10.I have carefully reviewed the record of the trial court. The Applicant faces a charge under 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. 11.The principal basis upon which bail was declined was that the Applicant is a mexican national. The prosecution maintained that he lacked a permanent fixed abode, and therefore presented a real flight risk. 12.The Applicant, on the other hand, contends that he has lived in donholm. He further stated that he is willing to comply with reporting conditions, favourable remand reports and the existence of family and community ties within the jurisdiction. 13.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. 14.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. 15.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. 16.Consequently, I find no basis for interfering with the impugned ruling. The applications lack merit and are hereby dismissedOrders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026 __________________ D. KAVEDZAJUDGE