https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11883

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **MISC. CRIMINAL APPLICATION NO. E127 OF 2026** MOSES SIMIYU MUBASSY……….…………………….………..APPLICANT VERSUS REPUBLIC……………………………………………..………..RESPONDENT **RULING** 1. The Applicant filed the notice of motion dated 17th June 2026 seeking orders of pending trial. The application is supported by an affidavit sworn by the Applicant of similar date. 2. The applicant avers that he is currently facing charges before the JKIA Law Courts in Criminal Case No. MCCR E001 of 2006 and upon his arraignment he applied to be admitted to bond/bail pursuant to Article 49(1) (h) of the Constitution and the court ordered for the preparation of the pre-bail report. The bond/bail was declined principally on the ground that he lacked sufficient community ties as alleged by the trial court. 3. The applicant avers that upon applying for a review of the bond terms, the court directed the preparation of a second Bail Information Report. According to the report, he is a Kenyan citizen from Busia County with identifiable family members, including his paternal aunt, Margaret Akello, who raised him after the death of his parents and is willing to support his release, and his paternal uncle, Anthony Khumba, who expressed willingness to act as his contact person and surety. 4. He asserts that the report confirmed he has a known place of residence in Ongata Rongai, no history of absconding court, jumping bail or breaching court orders, and that the investigating officer did not oppose his release, stating that he was not a flight risk. He adds that the Probation Officer found that he has strong family ties and recommended his release on bond. 5. The contends that despite the favourable findings of the second Bail Information Report, he remains in custody. He states that he is an orphan and the only child of his deceased parents, contending that being raised by extended family should not be used to deny him his constitutional right to bail under Article 49(1)(h) of the Constitution. He further asserts that his continued detention amounts to punishment before conviction and expresses his willingness to comply with any bond terms the court may impose. 6. Finally, they aver that they have cooperated fully with investigating officers since their arrest and undertake to continue cooperating with the investigations. 7. At this stage, the duty of the Court is not to determine the veracity of the applicant’s fears or to interrogate the merits of any intended investigations, but to ensure that the constitutional rights and fundamental freedoms guaranteed to every person are not imperilled by unlawful or excessive State action. 8. Article 49(1) of the Constitution 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 to the contrary. Although anticipatory bail is not expressly provided for in statute, the Constitution does not prohibit the Court from granting such relief where circumstances so demand, particularly to forestall threatened violations of rights. 9. Further, Article 22(1) of the Constitution accords every person the right to institute proceedings where a right or fundamental freedom has been denied, violated, infringed, or is threatened. That provision is broad and does not exclude persons who seek anticipatory protection against unlawful arrest or intimidation by State agencies. 10. At this ex parte stage, the Court is only required to be satisfied that the apprehended threat is not idle or speculative. On the material placed before the Court, I am satisfied that unless the orders sought are granted, the applicant’s right to liberty and security of the person under Article 29 of the Constitution stands at real risk of being compromised. 11. Having considered the application, the supporting affidavit of the applicant, and the annexures thereto, I hereby order as follows: 12. The Applicant herein is admitted on a bond of **Kenya Shillings Three Hundred Thousand (Kshs. 300,000**) with a surety or a cash bail **Kenya Shillings** **One Hundred Thousand (Kshs. 100,000)** 13. The applicant to avail a contact person with a passport photo, copy of National ID and a letter from the chief if the applicant opts for a cash bail. 14. File to be returned to be returned to JKIA for hearing. **Ruling dated and delivered virtually on this 30th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Namai for the Applicant Mr. Mutuma for the Respondent Karimi Court Assistant