Ling’amoi & another v Republic (Criminal Appeal E059 of 2026) [2026] KEHC 9312 (KLR) (30 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E059 OF 2026** BRAMWEL KISANG LING’AMOI………………………………..1ST APPELLANT KENNEDY KEMELI………………………………………………2ND APPELLANT VERSUS REPUBLIC …………………………………………..……………......RESPONDENT **RULING** 1. The Appellants challenge the trial court's decision refusing to admit them to bail pending trial. Before the trial court, the Appellants were jointly charged with the offence of trafficking in narcotic drugs contrary to section 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 15th December 2025, the trial court declined to admit them to bail. 2. The Appellants contend that, although their four co-accused were granted bail, they were denied bail solely because they are serving police officers and were presumed to wield influence capable of interfering with witnesses. They further contend that the prosecution neither filed a replying affidavit nor opposed their release on bail. 3. They further rely on favourable pre-bail reports. The 1st Appellant is described as a 34-year-old married father of two, the sole breadwinner of his family and a police officer attached to Juja Police Station. The 2nd Appellant is a 31-year-old married father of one and a police officer attached to Jogoo Police Station. Both reports recommended their suitability for release on bail. 4. The Appellants further state that the 1st Appellant suffers from bronchial asthma and that his continued detention poses a risk to his health. They maintain that they are persons of good character with strong family and community ties, are not flight risks, will not interfere with witnesses, and undertake to comply with any bail terms imposed by the Court. They therefore contend that their continued detention is discriminatory, unjustified and contrary to the constitutional presumption of innocence, and urge this Court to set aside the order denying them bail. 5. Although the matter was presented in the form of an appeal, the relief sought is, in substance, a revision of the order denying bail. In the interests of justice, the Court will determine the substantive issues raised. 6. The sole issue for determination is whether the trial court erred in declining to admit the Appellants to bail pending trial. 7. This court's revisional jurisdiction is donated by section 362 of the Criminal Procedure Code, which 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."** 1. It follows that this court is not sitting on appeal against the exercise of discretion by the trial court. Its mandate is confined to determining whether the impugned order is vitiated by illegality, irregularity, impropriety or an error of law. Unless such defects are demonstrated, this court ought not to interfere with the decision of the subordinate court. 2. 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."** 1. The burden rests upon the prosecution to demonstrate the existence of compelling reasons. Section 123A of the Criminal Procedure Code further provides that: **"(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."** 1. The Bail and Bond Policy Guidelines reiterate at paragraph 4.9 that: **"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. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences."** 1. Further, paragraph 4.26 places the burden upon the prosecution to establish, on a balance of probabilities, compelling reasons including that the accused is likely to abscond, interfere with witnesses or evidence, commit further offences, or where the exceptions under section 123A of the Criminal Procedure Code apply. Equally, Article 50(2)(a) of the Constitution guarantees every accused person the right to be presumed innocent until the contrary is proved. The Bail and Bond Policy Guidelines emphasise that pre-trial detention should not amount to punishment and that an accused person should ordinarily be released unless compelling reasons exist. 2. I have carefully examined the record of the trial court. The Appellants face a charge of trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act. While the seriousness of the charge is not, by itself, a compelling reason to deny bail, it remains a relevant consideration under section 123A of the Criminal Procedure Code when weighed together with the nature of the allegations, the circumstances of the offence and the interests of the administration of justice. 3. The principal basis upon which bail was declined was the likelihood of interference with witnesses. The Appellants are serving police officers attached to Juja Police Station and Jogoo Police Station respectively. By virtue of their office, they wield authority and influence within the policing structure and the wider criminal justice system. The trial court was entitled to take judicial notice of the fact that serving police officers occupy positions capable of exerting influence over witnesses. 4. The apprehension of witness interference was therefore not founded merely on speculation but on the unique position occupied by the Appellants as law enforcement officers. 5. Although the Appellants rely on favourable pre-bail reports, their family responsibilities, the 1st Appellant's medical condition and the prosecution's failure to file a replying affidavit opposing bail, those factors were expressly considered by the trial court. The absence of a replying affidavit did not preclude the court from considering the totality of the material before it in determining whether compelling reasons existed. Equally, favourable pre-bail reports are not binding on the court and do not displace other compelling considerations established from the record. 6. The constitutional right to bail under Article 49(1)(h) is not absolute and may be limited where compelling reasons are established. Courts have consistently recognised that a demonstrated likelihood of interference with witnesses constitutes such a compelling reason. In R**epublic v Dwight Sagaray & 4 Others [2013] eKLR,** **Republic v Makoy Madhak Deer [2015] eKLR**, and **Republic v Richard David Alden [2016] eKLR**, the courts affirmed that the risk of witness interference is a legitimate basis for declining bail where the administration of justice is likely to be prejudiced. 7. Having independently reviewed the record, I am satisfied that the learned trial magistrate properly exercised her discretion. The finding that the Appellants, by reason of their positions as serving police officers, were likely to interfere with witnesses was supported by the material placed before the court and cannot be said to have been arbitrary or based solely on their employment status. No illegality, impropriety, material irregularity or misdirection has been demonstrated to warrant this Court's intervention under sections 362 and 364 of the Criminal Procedure Code. 8. Accordingly, I find no basis for interfering with the impugned ruling until key prosecution witnesses have testified. Orders accordingly. **Ruling dated and delivered virtually this 30th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Ariyo for the Appellants Ms. Okeyo for the Respondent Karimi Court Assistant.