https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11128

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKADARA** **CRIMINAL DIVISION** **CRIMINAL MISC APPLICATION NO E048 OF 2026** **MOSES MAGARA MICAH …………………………………. APPICANT** **VERSUS** **REPUBLIC ………………………………………………... RESPONDENT** **(Being revision from the original decisions from criminal cases no E 832 and 837 of 2026 of the Chief Magistrates Court at Makadara)** **RULING** 1. By a Notice of Motion under Certificate of urgency dated 8th may 2026 the applicant moved the court for the following orders: 2. That the court do call for the lower court files Number E837 and 832 of 2026 both **Republic versus Mose Magara Micah under the powers under section 364 of the CPC** in order to satisfy itself as to the correctness, propriety and constitutionality of the decision reached to grant bail to the Applicant in excessive and punitive bond of Kshs 300,000 and kshs 1,000,000 respectively without an alternative of reasonable cash bail. 3. That the court exercises its Supervisory powers and consolidate files MCCR / E837 /2026 and MCCR /E832 / 2026 4. That the Court be pleased to exercise its revisionary powers under Article 165(6) and (7) to make appropriate relief in line with the administration of justice and in this situation the protection and preservation of the right to liberty, fair trial, reasonable bail and bond terms as well as the right to presumption of innocence that safe guards against pre-trial detention by admitting the applicant to reasonable cash bail of kshs 30,000 with one contact person. 5. The application was based on the grounds on the face thereof and supported by an affidavit sworn by the applicant’s Advocate in which it was deposed that the applicant was currently in remand custody even after being admitted to bond in respect of the two criminal matters before the lower court, which matters arose from an alleged offence by the accused founded on the same transaction or series of transactions between the year 2023 and 2025 within the meaning of section 135 of the Criminal Procedure Code and therefore a perfect candidate for consolidation. 6. That the applicant made an application thereon before the trial court dated 27th February 2026 which was dismissed and that the matters were set for hearing on 16th june2016 and 25th June 2026 respectively , yet the same arises from the same facts and compliant which was a kin to using the criminal justice system to punish the accused /applicant causing his continued detention on account of procedural duplication amounts to unjustifiable limitation of his constitutional right to bail under Article 49(1)(h) and his right to liberty under Article 29 of the Constitution. 7. That the continued conduct of the two matters separately and bail terms and conditions as currently set are unconstitutional , excessive , punitive and unreasonable with the undesirable consequence of pre-trial detention ,having rendered the right to bail illusory. That no prejudice will be occasioned to the prosecution to consolidate the matters so as top expeditiously dispose of the matter. 8. The respondent did not file anything in response thereto. **SUBMISSIONS** 1. On behalf of the applicant, it was submitted that the court has jurisdiction under Article 165(c ) of the Constitution and that section 123 of CPC requires that the amount of bail should not be excessive , noting that there was presumption of innocence of the applicant who had been in remand custody for six months despite the fact that he had been granted bond by the trial court. 2. It was contended that the purpose for bail was to guarantee the applicants appearance at his trial and that the court must balance the rights of the accused to presumption of innocence and fair trial, with those of the complainant. The terms of bond should not result into pre-trial detention. In support of this submissions reference was made to the cases of **Republic versus David M Mwangi [2022] eKLR** to the effect that the value of bond should not be seen as punishment to the accused person and that the amount should not be equal to the embezzled amount; **Republic versus Ramadhan** the terms must be reasonable to secure the attendance of the accused to court; **Dansun Mugunya versus Republic**, right to bail is a constitutional right. 3. On the issue of consolidation, it was submitted that this court has jurisdiction as was held in the case of **Republic versus Ongou & 2 others [2024] eKLR** where the court stated that it is to facilitate the determination of a matter if it involves the same parties and in the interest of the parties. In **Republic versus Koech Keiyo [2015] eKLR** the court stated that it was desirable in the interest of justice. It was submitted that Article 157 grants prosecutorial powers ODPP but the same is checked through the guidelines to charge which provides for consolidation of matters. 4. On behalf of the respondent , it was submitted on consolidation that the same is made by the prosecution as the holder of the files and the case and that this court cannot order consolidation if the prosecution does not desire the same. On the issue of irregularities , it was submitted that none had been established and that the bond terms are granted at the discretion of the trial court. **DETERMINATION** 1. Having called for the two files from the lower court for perusal , it is not in dispute that the applicant faces two criminal charges before the lower court on the charges of stealing by servant contrary to section 281 of the penal code with Criminal Case No E832 /2026 being between 5th January 2025 and 27th December 2025 at Mihongo Kayole stole cash amounting to kshs 813,500 being a servant of John Onyiego while Criminal Case No E837 of 2026 , the fact thereof was that between May and December 2025 at Omega Area in Njiru sub County stole rent money kshs 402,500 the property of John Onyiego. 2. It is not in dispute that the applicant has been granted bond on the two files , the subject of this ruling. 3. The first issue for determination is whether this court has the power and jurisdiction to order for consolidation of cases pending before the lower court and whether the applicant has made up a case for consolidation while the second issue is whether the bond terms granted herein are illegal, irregular and un-procedural so as to revised by this court under its supervisory powers herein. 4. The revision powers of this court to revise and supervise the lower court were stated by this Court in the case of **George Aladwa Omwera v R [2016] KEHC 7437** thus ; “ ***19.A reading of this Article of the Constitution clearly shows that the High Court now has supervisory jurisdiction both in respect of civil and criminal matters arising from the subordinate courts in addition to the supervising quasi judicial bodies to ensure the fair administration of justice. 20.In respect to criminal matters Section 362 and 364 (1) (b) of the Criminal Procedure Code provides as follows:- S. 362 the High court may call for and examined the records 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. S. 364(1) in the case of a proceeding in subordinate court the record of which has been called for or which has been reported for order or which otherwise comes to its knowledge, the High Court may (b) in the case of any other order other than an order of acquittal alter or reverse the order. 21.It therefore follows that this court has both Constitutional and statutory jurisdiction to determine this matter herein by calling for the records of the trial court to satisfy itself as to either the correctness, legality or propriety of the finding of the trial court however the jurisdiction of the court herein must be exercised with the legal splenetic of revisionary jurisdiction is upon which the application is brought which jurisdiction include cancelling or reversing the bonds terms granted in appropriate cases. 22.In exercising supervisory jurisdiction under Article 165(6) the court does not exercise appellate jurisdiction and therefore cannot review or reweigh evidence upon which the determination of the lower court is based, it can only demolish the order which it considers erroneous or without jurisdiction and which constitutes gross violation of the fair administration of justice but does not substitute its own view to those of the inferior tribunals. 23.In VEERAPPA PILLAI v REMAAN LTD the Supreme court of India has this to say:- “The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made…..” 24.The above principle is applicable to the exercise of revisional jurisdiction of the court wherein the court too cannot sit in appeal and re-appreciate the evidence. It is only exercised to correct the manifest error in the order of the subordinate courts but should not be exercised in a manner that turns the Revisional court into appeal. The jurisdiction cannot be exercised mainly because the lower court has taken a wrong view of the law or misapprehended the evidence tendered. See PATHUMMAA & Anor v. MUHAMMED 1986 (2) SCC 585 where it was stated that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of the magistrate on question of facts*** 5. I still stand by the decision herein above and has nothing more to add thereon. 6. On the issue of consolidation the courts have the power to consolidate criminal trials where they involve the same parties and the same subject matter as is provided for under section 135 (1) of the CPC the requirement is that they be founded on the same facts or form part of a series of offences of the same or similar character and the court consider the interest of justice and desirability of efficiency as was stated in the cases of **Koech Keiyo & 8 others v Republic[2015] e KLR,** and **Republic versus Odak [2025] KEHC 4101(KLR)** and therefore agree with the submission by the applicant that both this court and the trial court has the power to order for consolidation where the provisions of section 135 (1) of CPC is satisfied . 7. In this matter the offences occurred on different dates and the subject matter of the offences are different save for the fact that the complainant and the applicant are the same and therefore consolidation might not be in the best interest of justice. 8. In this causes further as regards the issue of consolidation, the applicant made the application before the trial court on 9th March 2026 and according to the records of the proceedings on 19th March 2026, the application was marked as abandoned. Further proceedings on 20th April 2026 the Advocate for the applicant indicated to the court that they shall not be applying for consolidation. 9. It is therefore clear that the trial court did not make any determination on the issue of consolidation , the applicant having abandoned the application and can now not be heard to say that the court erred in rejecting the same 10. I have looked at the two files and note that the matters did not arise from the same transaction. The reports were also made to and investigated by different police stations and therefore consolidation will not be in the best interest of seedy disposal of the matters herein and is therefore rejected. 11. On the issue of bond terms, in this cause , the applicant was granted bond by the trial courts, the issue before me is whether the said bond terms are reasonable within the meaning of Article 49 of the Constitution? It is not in dispute that since the applicant was granted the said bond terms, the same has not been able to secure his release and whereas the trial court in Criminal Case No E 837 of 2026, indicated that the terms therein is sufficient, I have looked at the pre-bail report submitted before the trial court and would agree with the applicant that the said terms amount to a denial of bond terms noting that the applicant was working with the complainant as a caretaker, having previously worked as a casual labourer and as a successful Kenyan is a proud husband of two wives. 12. The courts primary interest is to ensure that the accused remains available to answer the charges against them , with the focus being whether the sureties can secure the accused attendance. The nature of the offence, the amount involved and the standing of the complainant in society should not guide the court in deciding on the bond amount once it has found as in these cases that there are no compelling reasons to deny bond as in the cases herein. 13. I have also looked at the report on his community ties and note that the Assistant Chief has confirmed that he has identifiable and traceable ties within the community. Whereas the applicant has proposed cash bail of kshs 30,000 , I have looked at the bond terms granted by the court and is of the opinion and hold that as regards the applicant the same amounts to denial of bond and ought to be reviewed as the purpose of bond remains to secure the attendance of the applicant in court and there is nothing placed before the court save for the fact that he was arrested at his rural home to confirm that the same shall abscond. 14. The prayer as regards review of bond terms is allowed as follows : 15. As regards MCCR /E837 of 2026 wherein the applicant was granted bond of Kenya shillings three hundred thousand(kshs 300,000) the same is reduced to a bond of Kenya shillings one hundred and fifty thousand (kshs150,000) with one surety of similar amount and in the alternative cash bail of Kenya shillings one hundred thousand (kshs 100,000) with one recognized Kenyan citizen. 16. As regards MCCR /E832 of 2026 wherein the applicant was granted bond of Kenya shillings one million (Kshs 1,000,000) the same is reduced to bond of Kenya shillings five hundred thousand ( kshs 500,000) with one surety of similar amount and in the alternative cash bail of Kenya shillings two hundred and fifty thousand (kshs 250,000) with one recognized Kenyan citizen. 17. The applicant shall not leave the jurisdiction of this court without written consent by the court in each case. 18. The applicant shall report to the investigating officer herein once after every thirty (30) days with the first of such reports being immediately upon being released from custody and thereafter at dates to be given and recorded by the said investigating officer and thereafter on the last Thursday of each subsequent month. 19. The said investigating officer shall file monthly report to the courts unless otherwise directed . 20. And it is ordered . **DATED SIGNED AND DELIVERED THIS 23rd DAY OF JULY 2026** **J. WAKIAGA** **JUDGE** In the presence of Court Assistant - Irene Ms Kariuki Mr. Nooradin