https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12263

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL DIVISION CRIMINAL REVISION NO. E017 OF 2026 KENNEDY OCHIENG .................................................................... APPLICANT REPUBLIC ................................................................................... RESPONDENT - VERSUS - R U L I N G 1. Sections 362 and 364 of the Criminal Procedure Code provides: - “362. 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. 364. (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— Page 1 of 5 (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse the order. ....” 2. The spirit and tenure of the foregoing provisions is to give this Court jurisdiction to call for lower court proceedings to satisfy itself on the legality, regularity or propriety of any proceeding or order made by a subordinate court. Once the Court satisfies itself that there was an irregularity or illegality or impropriety there is power then to set aside any such proceeding or order. 3. On 1/7/2026, Kennedy Ochieng alias Ken was arraigned before the Senior Principal Magistrate’s Court, Kombewa with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. He pleaded not guilty and was granted bond of Kshs.150,000/-. There was no option of cash bail. 4. By a Motion on Notice dated 9/7/2026, the applicant applied that the order for bond terms be reviewed and set aside and an option of cash bail be given. That the applicant did not have either title or log book to be able to post the bond given by the trial court. Page 2 of 5 5. In Harish Mawjee & Anor vs Republic (2020) eKLR, Lesiit J (as she then was) observed that: - “There are certain overarching principles that govern the administration of bail and bond by Courts. First of all, Courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if found necessary. Secondly, bond terms should not be arbitrary, but the Court must consider the relevant factors affecting issuance of bond including penalty of offence and the accused’s ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. Fourthly, an accused has the right to seek review of bond terms from trial court or high court or appeal.” 6. In Joseph Nduvi Mbuvi vs Republic (2019) eKLR, it was held that the revisional jurisdiction of the High Court is to correct manifest irregularities or illegalities. It is settled that an appellate court must exercise restraint in interfering with judicial discretion. In Mbogo vs Shah (1968) EA 93, the Court of Appeal held: - Page 3 of 5 “A Court of Appeal should not interfere with the exercise of discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge has been wrong in the exercise of his discretion and as a result there has been misjustice.” 7. In the present case, the trial court exercised its discretion and granted bond on terms. It is the terms with which the applicant is aggrieved with. In particular, the refusal to give an option of cash bail. That the applicant does not have a title or log book to surrender to Court in compliance with those bond terms. The question is, was that wrongful exercise of discretion? 8. In the supporting affidavit, there was no allegation that there had been any irregularity, illegality or impropriety on the part of the trial court. It was not alleged that the trial court had wrongly exercised its discretion, or it had failed to consider a material fact or had considered a matter not supposed to be considered. The applicant did not allege any wrongdoing on the part of the trial court except the failure to give the bail option. 9. A close reading of sections 362 and 364 of the Criminal Procedure Code will reveal that the revision jurisdiction is not intended to afford an aggrieved party an opportunity to re-argue the merits or otherwise of a discretionary decision, Page 4 of 5 nor is it a substitute for an appeal. It is rather a jurisdiction reserved for correcting errors of law, jurisdictional defects, material irregularities or instances where the impugned decision is demonstrably incorrect, irregular, illegal or improper. 10.Since the trial court retains the residual power in criminal proceedings, where it has granted bond but an accused considers the same to be excessive, unreasonable or oppressive, like where it fails to grant an alternative cash bail, the proper course would be, in the first instance to move the same trial court for a review or variation of the bond terms. It is where the trial court declines to review or vary the bond terms that an accused should challenge the same either by way of review or appeal. 11.In the present case, there is no evidence to show that the trial court abused its discretion. There is no irregularity, illegality or impropriety that was alleged or established. 12.In the circumstances, the Motion dated 9/7/2026 is found to be without merit and is dismissed. It is so ordered. DATED and DELIVERED at Kisumu this 31st day of July, 2026. A. MABEYA, FCI Arb JUDGE Page 5 of 5