https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11685

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CRIMINAL DIVISION** **MISCELLANEOUS APPLICATION NO. E111 OF 2026** **HERMAN KAMAU MAINA---------------------------------------APPLICANT** **-VERSUS-** **THE DIRECTOR OF PUBLIC PROSECUTION-------------RESPONDENT** **RULING** The accused person through Mr. Oruko has urged this court to review the Bailterms imposed by the lower court in Milimani CM’s CRC No. E 494/2025. The accused has posited that he is unable to raise Ksh. 100,000/= that the lower court granted him as Cash bail Mr. Oruko has proposed Bail of Ksh. 10,000 /= and indicated that the accused person’s economic support system is weak since the brother and sister are juakali Artisans. According to Mr. Oruko the two would have difficulties raising any sum of money above Ksh. 20,000/= but they are willing to stand surety for him. The Advocate presented to the court a letter dated 21st May 2026 from the Chief Kayole Location indicating that the accused is a person of good character and that members of Nyumba Kumi have conformed the same. Mr. Mogere for the state urged the court to consider the gravity of the offence as it embarks on reviewing the accused person’s Bail. The prosecution counsel urged that a sum of Ksh. 10,000/= proposed by the defence is too little a figure to offer. The Defence counsel in response urged the court not to use the value of the subject matter as the determinant of the figure to impose as Cash Bail. The court was urged to consider the personal circumstances of the accused and set terms that are reasonable. This court has heard both counsel and one thing is clear from their submissions, that the court has the power and discretion to determine the terms of Bail. This is a case where the accused is said to have been in remand since 2/10/2025. It is clear to the court that the accused is certainly unable to raise Ksh. 100,000/= as ordered by the trial court. The case therefore merits review. The purpose of Bail/Bond is to ensure that the accused person returns to face his accusers once released on Bail. It is not and should never translate into a pre -conviction punishment. Liberty is precious as was observed by Hon. Justice Mohammed Ibrahim (as he then was) in Danson Mgunya& Another vs. Rep 2010 eKLR. The accused person is presumed to be innocent until proven to be guilty. As such he should not have his liberty unnecessarily curtailed simply because of his economic inability. Article 50 of the Constitution on a fair trial requires that the interests of justice be carefully weighed whenever a court is called upon to make a decision that may affect the fairness of a trial as well as the rights of an accused person. The accused person is jointly charged with another who has since left prison because he was able to post Bail. The economic situation of the accused person should not put him at a disadvantage as he goes through the trial together with his co-accused. Times are hard for everyone and I have no doubt that no one would want to sit in prison if they were able to raise money to secure their release. The poor just like the rich must be let to enjoy freedom under Article 49(I)(h) of the Constitution. The accused must also be allowed to benefit from the transformative nature of our constitution which focuses on social justice to all. The court is thus minded to reviewe the Ruling by Hon. R. Ondieki SPM (as he then was) delivered on 31st October 2025 in exercise of the power of this court under Article 165(6) of the Constitution as read with Sections 362 and 364 of the Criminal Procedure Code and make the following orders:- **1.** The accused person shall deposit a sum of Ksh. 15,000 as Cash bail. **2.** The Accused person’s brother and sister shall each execute personal Bonds of Ksh 50,000/= and undertake on oath before the Deputy Registrar of this court that they shall ensure that the accused person attends court as and when required to do so. **3.** The two sureties shall each provide their mobile telephone contacts to the court. **4**. The accused shall also provide his telephone contact and together with his sister and brother they shall maintain the phone numbers in active use until the matter is heard and determined. **5.** It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 22nd day of MAY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Oruko for the Applicant Mogere for Respondent