Mutua & 3 others v Sheikh & another (Criminal Revision E068 & E087 of 2026 (Consolidated)) [2026] KEHC 9175 (KLR) (25 June 2026) (Ruling)

Mutua & 3 others v Sheikh & another (Criminal Revision E068 & E087 of 2026 (Consolidated)) [2026] KEHC 9175 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9175 (KLR) Republic of Kenya In the High Court at Kibera Criminal Revision E068 & E087 of 2026 (Consolidated) DR Kavedza, J June 25, 2026 Between Muammar Mohammed Mutua 1st Applicant Lonney Wambui Waruguru 2nd Applicant Adam Omar 3rd Applicant Yusuf Hajnur 4th Applicant and Rishad Adbulrahim Sheikh 1st Respondent Republic 2nd Respondent Ruling 1.The applicants filed separate applications seeking revision of the trial court's orders refusing them bail pending trial. By consent, the applications were consolidated for determination through this ruling. 2.Before the trial court, the applicants are jointly charged 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. They pleaded not guilty. In a ruling delivered on 8th November 2025, the trial court declined to admit them to bail pending trial. 3.The applicants challenge that decision on several consolidated grounds. The 1st and 2nd applicants, who are husband and wife, contend that they are the primary caregivers of their family. They further submit that they are Kenyan citizens with fixed places of residence and therefore pose no flight risk. 4.The 4th and 5th applicants contend that they recently received treatment at Kenyatta National Hospital following serious medical complications. They state that they require specialised medical care, with the 5th applicant specifically suffering from respiratory complications. The 5th applicant further deposes that he is a dual citizen of Kenya and the United Kingdom and has a permanent residence in Nyali, Mombasa. The 4th applicant, though a British citizen, also maintains a permanent residence in Nyali. 5.The applicants further contend that the respondent failed to demonstrate why less restrictive measures, including the imposition of appropriate bail terms, would not adequately secure their attendance at trial. They argue that the trial court erred in denying them bail solely on allegations of involvement in an organised criminal enterprise, notwithstanding that they remain presumed innocent and have not been convicted of the offences charged. They urged the court to revise the orders denying them bail/bond. 6.The applications were canvassed by written submissions with the applicants and respondent filing their respective submission. The same have been duly considered and there is no need to rehash them. 7.The issue for determination is whether the applicants have demonstrated that the trial court fell in error in denying them bail/bond. 8.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." 9.It follows that this court is not sitting on appeal against the exercise of discretion by the trial court. Its mandate is confined to determining whether the impugned order is vitiated by illegality, irregularity, impropriety or an error of law. Unless such defects are demonstrated, this court ought not to interfere with the decision of the subordinate court. 10.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." 11.The burden rests upon the prosecution to demonstrate the existence of compelling reasons. Section 123A of the Criminal Procedure Code further provides that:“(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.(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—(a)has previously been granted bail and has failed to surrender to custody and that if released on bail it is likely that he would fail to surrender to custody; or(b)should be kept in custody for his own protection." 12.The Bail and Bond Policy Guidelines reiterate at paragraph 4.9 that:“In terms of substance, the primary factor considered by the courts in bail decision-making is whether the accused person will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution of 2010 is determining the existence of compelling reasons for denying an accused person bail, particularly in serious offences." 13.Further, paragraph 4.26 places the burden upon the prosecution to establish, on a balance of probabilities, compelling reasons including that the accused is likely to abscond, interfere with witnesses or evidence, commit further offences, or where the exceptions under section 123A of the Criminal Procedure Code apply. Equally, Article 50(2)(a) of the Constitution guarantees every accused person the right to be presumed innocent until the contrary is proved. The Bail and Bond Policy Guidelines emphasise that pre-trial detention should not amount to punishment and that an accused person should ordinarily be released unless compelling reasons exist. 14.I have carefully examined the record of the trial court. It is evident that the learned trial magistrate considered the affidavits filed by the prosecution, the respective pre-bail reports, the applicants' personal circumstances, their family responsibilities, their medical conditions, and the submissions advanced by both parties before arriving at the impugned decision. The record therefore does not support the contention that the trial court ignored relevant considerations or misdirected itself in law. 15.The applicants face serious charges of conspiracy to traffic in narcotic drugs and trafficking in narcotic drugs under the Narcotic Drugs and Psychotropic Substances (Control) Act. Although the seriousness of the offence alone is not a compelling reason to deny bail, it remains a relevant factor under section 123A of the Criminal Procedure Code, particularly when considered alongside the nature of the allegations and the severity of the sentence that may follow upon conviction. 16.The prosecution further placed before the trial court material alleging that the applicants were acting as part of an organised drug trafficking syndicate operating across jurisdictions. It was also contended that investigations were ongoing and that the applicants, if released, were likely to interfere with witnesses and compromise the prosecution case. These concerns were considered together with the findings contained in the pre-bail reports. 17.While the 1st and 2nd applicants rely on their family responsibilities and the 4th and 5th applicants rely on their medical conditions and fixed residences, those matters were expressly considered by the trial court. The court nevertheless found that those factors were outweighed by the compelling reasons advanced by the prosecution. The fact that some of the applicants are foreign nationals or hold dual citizenship, viewed alongside the allegations of participation in an international narcotics network and the gravity of the offences, was a relevant consideration in assessing the likelihood of absconding. 18.The court has previously held that being a foreign national is not, of itself, a compelling reason to deny bail. However, the court also recognised that a real possibility of absconding, interference with witnesses or investigations, and other cogent circumstances may constitute compelling reasons. Similarly, in Republic v Dwight Sagaray & 4 Others [2013] eKLR, Republic v Makoy Madhak Deer [2015] eKLR and Republic v Richard David Alden [2016] eKLR, the courts recognised that where there exists a demonstrated likelihood of absconding, interference with witnesses, or other risks to the administration of justice, the constitutional right to bail may properly be limited. 19.Having independently reviewed the record, I am satisfied that the learned trial magistrate properly directed himself on the applicable constitutional and statutory principles, considered all the relevant material placed before the court, including the pre-bail reports, and correctly concluded that the prosecution had established compelling reasons to warrant the denial of bail. No illegality, impropriety, material irregularity or misdirection has been demonstrated to justify this court's intervention under section 362 of the Criminal Procedure Code. 20.Consequently, I find no basis for interfering with the exercise of discretion by the trial court. The consolidated applications for revision are devoid of merit and are hereby dismissed. The orders declining to admit the applicants to bail pending trial are upheld.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE 2026.......................D. KAVEDZAJUDGEIn the presence of:Mr. Said Chitembwe for the ApplicantsMs. Otiya for the RespondentKarimi Court Assistant