Mbago & another v Republic

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **CRIMINAL REVISION APPLICATION NO. E016 OF 2026** **IN THE MATTER OF: SECTION 362 OF THE CRIMINAL PROCEDURE CODE, CAP. 75 LAWS OF KENYA** **SILVESTER MBAGO...........................................................1ST APPLICANT** **AZIZ MUBAJI.......................................................................2ND APPLICANT** **VERSUS** **REPUBLIC............................................................................ RESPONDENT** **RULING** **Introduction** 1. This is a revision arising from the ruling and order of the learned Hon H. N Ondieki Resident Magistrate at Busia delivered on 19th August 2026 in Miscellaneous Criminal Application No. E131 of 2026. 2. The record shows that the Applicants were arrested in connection with investigations into an alleged offence of robbery with violence contrary to section 296(2) of the Penal Code. The prosecution applied for an order authorizing their continued detention for fourteen (14) days to enable the investigating officer complete investigations. 3. The grounds advanced in support of the application included the fact that the investigations were ongoing, that the investigating officer was awaiting a ballistic report from Nairobi, that other suspects were yet to be arrested and that the respondents were required for purposes of assisting the police with the investigations. 4. The learned Resident Magistrate, after considering the application and the objection by the Applicants, found that there were reasonable grounds for allowing continued detention but considered fourteen (14) days excessive. The learned Magistrate consequently ordered that the Applicants be detained for ten (10) days at Adungosi Police Station to enable the investigating officer conclude investigations. 5. The Applicants have challenged that order by way of revision. The contention, in substance, is that the learned Magistrate failed to exercise her discretion judiciously and failed to apply the constitutional and statutory threshold governing continued detention of an arrested person. **Jurisdiction** 1. The jurisdiction of this Court is founded upon Article 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code. 2. **Section 362** of the Criminal Procedure Code empowers the High Court to call for and examine the record of any criminal proceedings before a 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. 3. Revision is not intended to substitute the High Court's discretion for that of the subordinate court merely because this Court might have arrived at a different conclusion. However, where the subordinate court has exercised its discretion upon wrong principles, failed to take into account relevant considerations, taken into account irrelevant considerations, or arrived at a conclusion that is not supported by the material on record, the High Court is entitled to intervene. 4. In **Republic v James Kiarie Mutungei [2017] eKLR,** the High Court observed that, *“interference in revision is justified where the impugned decision is grossly erroneous, the court has failed to comply with the law, there is a misdirection on the facts, or the decision is arbitrary or amounts to an abuse of the court process”.* 1. Similarly, in **Criminal Revision No. 8 of 2017**, the High Court stated that the purpose of revision is to ensure that the jurisdiction and authority of subordinate courts are properly exercised and that revision may be invoked to correct a miscarriage of justice arising from misconception of law, procedural irregularity, apparent error or neglect of procedural safeguards. 2. I therefore approach this matter not as an appeal on the merits but to determine whether the learned Magistrate exercised her discretion in accordance with the Constitution and section 36A of the Criminal Procedure Code. **The constitutional and statutory framework** 1. **Article 49(1)(f)** of the Constitution guarantees an arrested person the right to be brought before a court as soon as reasonably possible and not later than (24) twenty-four hours after arrest, subject to the constitutional exceptions. 2. More importantly for purposes of the present revision, Article 49(1)(g) provides that at the first court appearance an arrested person is to be charged, informed of the reason for the detention continuing, or released. 3. **Article 49(1)(h)** further guarantees an arrested person the right to be released on bond or bail on reasonable conditions pending charge or trial unless there are compelling reasons for withholding that right. 4. **Section 36A** of the Criminal Procedure Code gives effect to these constitutional guarantees. Under **section 36A(2)**, where the police have reasonable grounds to believe that detention beyond twenty-four hours is necessary, they must produce the suspect before court and apply in writing for an extension of the period of detention. 5. The application must, under **section 36A(3)**, disclose the nature of the offence, the general nature of the evidence upon which the suspect was arrested, the inquiries already made and further inquiries proposed, and the reasons necessitating continued detention. 6. Significantly, **section 36A(5)** provides that a court shall not order remand in custody unless there are compelling reasons for believing that the suspect will not appear for trial, may interfere with witnesses or the conduct of investigations, or may commit an offence while on release; or one of the other statutory circumstances exists. 7. Thus, the power of the court to order continued detention is not an unfettered discretion. It is a discretion circumscribed by the Constitution and statute. **Whether the threshold for continued detention was established** 1. The learned Magistrate affirmed that the Applicants had been brought before court within the constitutionally prescribed period. That, however, was only the beginning of the inquiry. Compliance with the twenty-four-hour requirement did not, by itself, justify continued detention. 2. The next and critical question was whether the prosecution had demonstrated compelling reasons warranting deprivation of the Applicants' liberty. 3. The learned Magistrate expressly observed that, the seriousness of the offence, standing alone, could not justify continued detention. I agree entirely with that proposition. 4. The difficulty arises from the subsequent conclusion that there was a “real likelihood of interference with witnesses by the respondents.” The ruling does not identify the evidence upon which that conclusion was reached. 5. The reasons specifically advanced in support of the application, as recorded in the ruling, were principally that the police were awaiting a ballistic report, that key suspects remained at large and that the respondents were required to assist in the ongoing investigations. 6. None of those matters, without more, demonstrates that the respondents, if released on reasonable conditions, would interfere with witnesses or the investigations. 7. The fact that other suspects have not been arrested cannot, in my view, constitute a compelling reason for detaining a person already arrested. Likewise, the fact that the police are awaiting a ballistic report from Nairobi is a matter relating to the progress of investigations. It does not, without evidence connecting the respondents to a specific risk of interference, demonstrate that their liberty would prejudice the investigation. 8. The same applies to the proposition that the Applicants were required to “assist” the police with investigations. A suspect's detention cannot properly be justified merely because the police wish to question or interrogate him further. The Constitution protects the arrested person's liberty and right to remain silent, and the investigative convenience of the police cannot, by itself, override those rights. 9. In **Kenneth Omondi Ochieng & 38 Others v Republic [2019] KEHC 7452 (KLR)**, the High Court considered an application for continued detention under section 36A. The Court emphasized that; *“the prosecution must satisfy the statutory threshold and that section 36A(5) requires compelling reasons before a court can remand a suspect in custody”.* 1. The same decision demonstrates the importance of a factual basis for an allegation of interference. In that case, the investigators had placed before the court specific material, including evidence relating to electronic devices and communications, which was relied upon to establish the apprehended interference. 2. In the present case, no comparable evidential foundation is apparent from the ruling for the conclusion that the respondents were likely to interfere with witnesses or investigations. 3. In **Betty Jemutai Kimeiywa v Republic [2018] KEHC 5642 (KLR)**, the High Court explained that Article 49 does not merely require production of a suspect before court within twenty-four hours. The court must thereafter consider whether there are lawful reasons for continued detention and, in particular, whether compelling reasons exist for denying release. 4. The Court further observed that the object of the constitutional safeguards is to prevent unwarranted extra-judicial and pre-trial detention, while recognising that circumstances such as risk of flight, interference with evidence or witnesses may, where demonstrated, justify further detention. 5. The distinction is important. The law does not prohibit continued detention in every case where investigations are incomplete. What the law prohibits is detention without the prosecution first demonstrating the statutory and constitutional basis for depriving the suspect of liberty. 6. In **Michael Rotich v Republic [2016] KEHC 8109 (KLR)**, the High Court similarly underscored that an arrested person's liberty should not be interfered with in the absence of legal reasons justifying continued detention. 7. I therefore find that the learned Hon H. N Ondieki Resident Magistrate fell into error by treating the existence of ongoing investigations, the seriousness of the alleged offence and the need to obtain outstanding investigative material as sufficient, without adequately interrogating whether those circumstances amounted to the compelling reasons contemplated by section 36A(5) of the Criminal Procedure Code. **Exercise of discretion** 1. It is trite that judicial discretion must be exercised judicially, on the basis of the law and the evidence before the court. 2. The learned Magistrate was undoubtedly entitled to exercise discretion under section 36A. However, that discretion had to be exercised within the parameters prescribed by Article 49 of the Constitution and section 36A of the Criminal Procedure Code. 3. The fact that the learned Magistrate reduced the period sought from fourteen (14) days to ten (10) days demonstrates that she considered proportionality to some extent. However, the reduction of the period does not cure the more fundamental question whether the threshold for detention in the first place had been established. 4. In other words, once the court found that the reasons advanced did not sufficiently establish a compelling reason for detention, the proper exercise of discretion was not to reduce the period of detention but to decline the detention order and consider whether appropriate conditions of release could adequately protect the investigation. 5. **Section 36A(4)** expressly empowers the court to release the suspect subject to conditions designed to ensure, among other things, that the suspect does not interfere with witnesses or investigations and remains available to assist the police with their inquiries. 6. The statutory scheme therefore recognises that detention is not the only mechanism by which investigative interests can be protected. 7. The learned Magistrate ought to have considered whether the alleged risks, if any, could be adequately addressed through reasonable conditions of release. That inquiry is particularly important because deprivation of liberty is the exception, not the default position. 8. In **Kenneth Omondi Ochieng & 38 Others v Republic (supra)**, the Court emphasised the need to balance the investigative interests of the State against the constitutional right to liberty, while insisting that the statutory threshold for continued detention must nevertheless be met. 9. In my view, the learned Hon H. N Ondieki Resident Magistrate's failure to undertake that critical inquiry amounted to an improper exercise of discretion and rendered the order amenable to revision. **Determination** 1. I have considered the record, the ruling of the learned Resident Magistrate and the applicable constitutional and statutory provisions. 2. I am satisfied that the learned Magistrate had jurisdiction to entertain the application for continued detention. I am also satisfied that the Applicants were brought before the court within the period contemplated by Article 49(1)(f). 3. However, compliance with Article 49(1)(f) did not automatically entitle the State to continued detention. 4. The prosecution was required to demonstrate compelling reasons as contemplated by Article 49(1)(h) and section 36A(5) of the Criminal Procedure Code. 5. On the material disclosed in the ruling, the reasons advanced — namely that investigations were ongoing, that a ballistic report was awaited, that other suspects were yet to be arrested and that the Applicant were required to assist the police with investigations — did not, without further evidence, establish a compelling reason for continued detention. 6. More particularly, the finding that there was a real likelihood of interference with witnesses was not sufficiently anchored in specific evidence disclosed on the record. The learned Magistrate therefore exercised her discretion on an insufficient evidential foundation. 7. The result was that the Applicants' constitutional right to liberty was curtailed without the statutory threshold for such curtailment having been satisfactorily established. 8. This is precisely the kind of error in the exercise of discretion that invokes the supervisory and revisionary jurisdiction of this Court under Article 165(6) and (7) of the Constitution and sections 362 and 364 of the Criminal Procedure Code. **Orders** 1. Accordingly, I make the following orders; 1. **The order of the learned Hon H. N Ondieki Resident Magistrate made on 19th August 2026 directing that the Applicants, Silvester Mbago and Aziz Mubaji, be detained for ten (10) days at Adungosi Police Station is hereby revised and set-aside.** 2. **Each Applicant shall forthwith be released on a Sureity Bond of kshs 500,000/- or in the alternative upon deposit of cash bail of Kshs 300,000/- unless otherwise lawfully held in connection with another offence or pursuant to another lawful order of a court.** 3. **The Applicants shall, upon release, remain available to the investigating officer and shall attend the police station or court whenever lawfully required for purposes of the investigations or subsequent proceedings.** 4. **The investigating officer shall be at liberty to proceed with the investigations and, should sufficient evidence be obtained, to take such lawful action as may be appropriate.** 5. **The Applicants' release shall not in any way prejudice the ongoing investigations or the power of the prosecution to institute appropriate criminal proceedings upon completion of investigations.** It is so ordered. **Signed, Delivered Virtually on Teams platform** **On this 21st day of August, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Hon. Mohochi S.M** **Presiding Judge**