https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10251

Mohamed v Office of the Director Public Prosecutions (Criminal Revision E048 of 2026) [2026] KEHC 10251 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEHC 10251 (KLR) Republic of Kenya In the High Court at Makadara Criminal Revision E048 of 2026 J Wakiaga, J July 14, 2026 Between Jamal Mohamed Applicant and Odpp Respondent (Being a revision from the decision of the Magistrate in Makadara Criminal Case No E670 of 2026) Ruling 1.By a Notice of Motion dated 24th march 2026 under certificate of urgency, the applicant moved the court for orders THAT: -a.The honourable court be pleased to call for and examined the record of the Chief Magistrates Criminal Case No E670 of 2026 for the purpose of satisfying itself as to the correctness, legality and propriety of the order revoking the applicant’s bond.b.The court be pleased to revise and set aside the ruling and order of the trial court revoking the applicant’s bond.c.The court be pleased to reinstate the bond terms earlier granted to the applicant on 5th February 2026 or grant such reasonable bond terms as the court may deem fit. 2.The application was supported by the annexed affidavit in which the applicant deposed that he was admitted to bond on 5th February 2026 and thereafter the prosecution lodged an application seeking cancellation of his bond which the honourable court granted on the basis that he had threatened witnesses through unidentified persons and alleged members of his family over whom he did not have control. 3.He stated that the said allegations were not supported by any direct evidence demonstrating that he had personally participated in or authorised the alleged act. He further denied the allegation that he was operating along the Kenya -Somali boarder region which did not reflect his known fixed place of residence. 4.The respondent did not file any replying affidavit thereto. Submissions 5.When the matter came up for hearing before me, Mr. Barongo for the applicant submitted that the revocation of the applicant’s bond terms was not justified as there was no evidence e of interference with unnamed witnesses, and or that the persons who allegedly contacted the witnesses were acting at the behest of the accused person. It was further contended that there were inconsistencies and contradiction as the OB did not disclose the identities of the alleged members of the accused family, the victims stated that they knew the accused. 6.It was submitted that as at the time of the alleged interference the accused had not processed bond and that there was no action taken by the policed so far in prosecuting the said people. It was stated that it would therefore be easy for a party to make an allegation noting that the court of appeal in Michael Juma Oyamo v republic stated that the reason for denial of bond must be overwhelming and forceful and that in Kamau v Republic , the court stated that it must be more than fear . 7.Ms. Kariuki fir the State submitted that the right to bail/bond is not absolute and that there were two OB reports b y the members of the deceased family and that the applicant has not submitted that he requested to cross examine them and was denied. The revocation was fair and regular, the court having not acted ulter vires as the court must ensure the safety of witnesses. The supervisory jurisdiction of the Court must not amount to interference with the exercise of discretion. SDetermination 8.Having called for the lower court file , the record shows that the bond was cancelled based on the affidavit sworn by Beatrice Jelagat in which she deposed that the accused operates and resides along the Kenya Somali border region an area characterized by porous border and therefore the attendance of the applicant in court cannot be guaranteed and that several accomplices involved in the commission of the offence were yet to be arrested and therefore the applicant was likely to compromise the ongoing investigations . 9.It was deposed therein that the complainant had expressed fear for his safety arising from threats and acts of blackmail allegedly issued by the accused person and that while in custody the accuse family members went into the victim’s house and made a n elaborate threat which was reported to the police and that the accused persons agents have coerced the victim by instituting criminal charges against him at Eastleigh North Police Station. That the offence herein was a gender-based violence , the accused having subjected the complainant to sexual masculinist to acts that amount to sodomy and sexual assault . 10.This courts supervisory powers have now been given Constitutional underpinning and this court had this to say thereon in the case of George Aladwa Omwera versus Republic [2016] KEHC 7437 had this to say on the said powers ; “ 19.A reading of this Article of the Constitution clearly shows that the High Court now has supervisory jurisdiction both in respect of civil and criminal matters arising from the subordinate courts in addition to the supervising quasi judicial bodies to ensure the fair administration of justice. 20.In respect to criminal matters Section 362 and 364 (1) (b) of the Criminal Procedure Code provides as follows: - S. 362 the High court may call for and examined the records 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. S. 364(1) in the case of a proceeding in subordinate court the record of which has been called for or which has been reported for order or which otherwise comes to its knowledge, the High Court may (b) in the case of any other order other than an order of acquittal alter or reverse the order. 21.It therefore follows that this court has both Constitutional and statutory jurisdiction to determine this matter herein by calling for the records of the trial court to satisfy itself as to either the correctness, legality or propriety of the finding of the trial court however the jurisdiction of the court herein must be exercised with the legal splenetic of revisionary jurisdiction is upon which the application is brought which jurisdiction include cancelling or reversing the bonds terms granted in appropriate cases. 22.In exercising supervisory jurisdiction under Article 165(6) the court does not exercise appellate jurisdiction and therefore cannot review or reweigh evidence upon which the determination of the lower court is based, it can only demolish the order which it considers erroneous or without jurisdiction and which constitutes gross violation of the fair administration of justice but does not substitute its own view to those of the inferior tribunals. 23.In VEERAPPA PILLAI v REMAAN LTD the Supreme court of India has this to say:- “The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made…..” 24.The above principle is applicable to the exercise of revisional jurisdiction of the court wherein the court too cannot sit in appeal and re-appreciate the evidence. It is only exercised to correct the manifest error in the order of the subordinate courts but should not be exercised in a manner that turns the Revisional court into appeal. The jurisdiction cannot be exercised mainly because the lower court has taken a wrong view of the law or misapprehended the evidence tendered. See PATHUMMAA & Anor v. MUHAMMED 1986 (2) SCC 585 where it was stated that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of the magistrate on question of facts 11.I can not do better than I did in the above case ten years ago and there is no need to reinvent the wheel as it regards the said powers. 12.In this cause the applicant had been granted bond and the same was cancelled by the trial court allegedly on the ground of witnesses’ interference by unnamed agent of the accused person. The court in doing so did not comply with the provision of article 24(1) (e ) of the constitution as to whether there was a less restrictive means to achieve the limitation of the applicants right to bai. 13.There was no evidence placed before the court to show that those who allegedly threatened the complainant were acting at the behest of the applicant and whether the said threats could not be ring fenced by appropriate further bond terms and conditions rather than through the cancellation of the bond and whether the compliant could not be placed under some form of protection. 14.The denial of accused right to bail and freedom of movement should be the last option more so where the court had granted bail. In this matter I have noted that the matter was scheduled for hearing on 26th June 2026 and therefore the applicant’s bond herein shall be reinstated upon the complainant testifying before the trial court and his evidence secured. 15.Now that the bond terms have been reviewed by the lower court this ruling is overtaken by event. 16.And it is ordered. DATED SIGNED AND DELIVERED THIS 14th DAY OF JULY 2026HON. J. WAKIAGAJUDGEIn the presence ofCourt Assistant IreneMr. Barongo for the applicantMs. Kariuki for the respondent