https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12623

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **MISC. CRIMINAL APPLICATION NO. E140 OF 2026** LONNEY WAMBUI WARUGURU………………….……………....APPLICANT VERSUS REPUBLIC …………………………………………..……………......RESPONDENT **RULING** 1. Before the trial court, the applicant is jointly charged with others with the offences of conspiracy to traffic in narcotic drugs and trafficking in narcotic drugs, contrary to sections 4B (4) as read with 4B (5), and 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. She pleaded not guilty. In a ruling delivered on 8th November 2025, the trial court declined to admit her to bail pending trial. 2. Aggrieved by that decision, the applicant and her co-accused challenged it before this Court in Criminal Revision Nos. E068 and E087 of 2026 (Consolidated). On 25th June 2026, this Court dismissed the consolidated applications. 3. The applicant has now filed a renewed application for bail dated 8th July 2026. She contends that she was implicated solely by virtue of her relationship with her husband and has no connection with the alleged offences. She further states that her health has deteriorated during her incarceration due to a chronic and complicated reproductive system ailment. She also contends that her children have been left at home without adequate care and protection. She is willing to abide by any conditions that the Court may impose. 4. The application was canvassed by way of written submissions, which I have duly considered. I need not reproduce or rehash the submissions herein. 5. The issue for determination is whether the applicant has demonstrated sufficient new or changed circumstances to warrant this Court revisiting its earlier decision declining to admit her to bail pending trial. 6. 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. The present application, however, is a renewed application for bail. The applicant previously challenged the refusal of bail in Criminal Revision No. E068 of 2026, which, together with Criminal Revision No. E087 of 2026, was dismissed by this Court on 25th June 2026. The question, therefore, is not whether the applicant is entitled to have the earlier decision reconsidered merely because she remains dissatisfied with it, but whether circumstances have materially changed since that determination so as to justify a different order. 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 right is, however, subject to 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.”** 1. The Bail and Bond Policy Guidelines similarly recognise that the primary consideration in bail determination is whether the accused person will attend trial if released. The prosecution bears the burden of demonstrating compelling reasons for continued detention, including the likelihood of absconding, interference with witnesses or evidence, commission of further offences, or any other circumstances recognised by law. 2. The applicant principally relies on her deteriorating health, her children’s need for her care and protection, and her contention that she was implicated in the alleged offences solely by reason of her relationship with her husband. I have considered these matters against the record and the circumstances obtaining when her earlier application was determined. 3. I have considered the material placed before the Court, including the pre-bail report on record. It does not disclose circumstances indicating that the applicant is likely to abscond, interfere with witnesses or evidence, commit a further offence, or otherwise fail to attend court if released on reasonable terms. Of significance, there is no compelling reason presently demonstrated on the record to justify the applicant’s continued detention. 4. I am mindful that the charges facing the applicant are serious. The seriousness of an offence is, however, only one of the factors to be considered under section 123A of the Criminal Procedure Code. It does not, in itself, constitute a compelling reason for denial of bail. The Court must consider the totality of the circumstances and balance the applicant’s constitutional right to liberty against the interests of the administration of justice. 5. The applicant has also raised her health and family circumstances. While the medical concerns raised by the applicant must be taken seriously, I do not consider it necessary to determine her application solely on that basis. The more significant consideration is that the constitutional threshold for continued detention has not been demonstrated. The applicant remains presumed innocent under Article 50(2)(a) of the Constitution and is entitled to the benefit of the constitutional right to bail unless compelling reasons are shown. 6. I have also considered the circumstances of the applicant’s children. Article 53(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The Court must therefore take into account the effect of the applicant’s continued incarceration on her children, particularly where, as appears from the record, they have been left without adequate parental care and protection. While the best interests of the children do not create an absolute entitlement to the release of an accused person, they are a relevant and weighty consideration in the exercise of the Court’s discretion on bail. 7. I am therefore satisfied that the present application, considered against the current record and the favourable pre-bail report, presents sufficient basis for a different determination. There is no compelling reason on record that outweighs the applicant’s constitutional right to liberty or that demonstrates that her release would prejudice the administration of justice. The concerns raised can adequately be addressed through appropriate terms and conditions of bail. 8. In the circumstances, I find the application dated 8th July 2026 meritorious. The applicant is hereby admitted to bail pending trial on the following terms: 9. She shall execute a bond of Kshs. 2,000,000 with one surety of a similar amount. 10. The applicant shall deposit her passport in court and shall not travel outside the jurisdiction of the court pending hearing and determination of the case or without the leave of court. 11. The applicant shall report to the Investigating Officer every month on a day to be agreed upon until the conclusion of the case. 12. The applicant shall not interfere, directly or indirectly, with any prosecution witness or the evidence in the case. Orders accordingly. **Ruling dated and delivered virtually this 5th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** **Mr. Magolo for the Applicant** **Ms. Otiya for the Respondent** **Karimi Court Assistant**