https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10099

Kakusu v Republic (Miscellaneous Criminal Application E097 of 2026) [2026] KEHC 10099 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 10099 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E097 of 2026 DR Kavedza, J July 8, 2026 Between Kyalo Kakusu Applicant and Republic Respondent Ruling 1.The Applicant filed the application dated 24th April 2026 seeking revision of the trial court's order denying him bail pending trial. The application is supported by an affidavit sworn on the same date. He prays that this Court reviews the impugned ruling and admits him to bail on reasonable terms pending the hearing and determination of the criminal case. 2.The Applicant is charged before the trial court with the offences of trafficking in narcotic drugs contrary section 4(a)(i) to the Narcotic Drugs and Psychotropic Substances (Control) Act and possession of public stores contrary to section 324(2) as read with section 36 of the Penal Code. He contends that the trial court erred in declining to admit him to bail despite there being no compelling reasons to justify his continued detention. He further depones that he is the sole breadwinner of his family and that his continued incarceration has occasioned hardship to his dependants. He therefore urges this Court to intervene and review the impugned decision. 3.I have considered the application, the supporting affidavit, the record of the trial court and the applicable law. The jurisdiction of this Court on revision is donated by sections 362 and 364 of the Criminal Procedure Code. Section 362 of the Criminal Procedure Code provides:“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." 4.The right to bail is guaranteed under Article 49(1)(h) of the Constitution, which provides:“An arrested person has 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." 5.The constitutional right to bail is not absolute. Where compelling reasons exist, a court is entitled to decline bail after considering all the relevant circumstances of the case. The question before this Court is therefore whether the trial court acted illegally, improperly or on wrong principles in concluding that compelling reasons had been established. 6.I have carefully examined the pre-bail report relied upon by the trial court. The report reveals that the Applicant has a history of abusing various narcotic substances and that members of the local community remain hostile towards him. The report further indicates that his release at this stage may expose him to hostility from the community and undermine his own safety. These were relevant considerations which the trial court was entitled to consider in exercising its discretion. 7.The Applicant's assertion that he is the sole breadwinner of his family, though deserving of sympathy, does not by itself displace the compelling considerations identified in the pre-bail report. Equally, the mere assertion that no compelling reasons existed cannot suffice where the record demonstrates otherwise. This Court is not sitting on appeal against the exercise of discretion by the trial court and will only interfere where there is illegality, impropriety, material irregularity or an error of principle. No such error has been demonstrated. 8.Having independently reviewed the record, I am satisfied that the learned trial magistrate properly considered the constitutional principles governing bail, the pre-bail assessment report and all the relevant circumstances before declining to admit the Applicant to bail. The decision was neither arbitrary nor capricious and discloses no basis for revision under sections 362 and 364 of the Criminal Procedure Code. 9.Nevertheless, bail is not a matter that is permanently foreclosed. Should circumstances materially change with the passage of time, the Applicant remains at liberty to renew his application before the trial court. 10.In the circumstances of this case, it would be appropriate for any such application to be made after the lapse of eight (8) months from the date of the impugned ruling, when the trial court will be best placed to assess whether the compelling reasons previously identified continue to subsist. 11.Accordingly, I find no merit in the present application. The application for revision is hereby dismissed. Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY 2026......................D. KAVEDZAJUDGEIn the presence of:Ms. Namai for the ApplicantMr. Mutuma for the RespondentKarimi Court Assistant.