https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7185

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E057 OF 2026** ELISHA LUMPHRY OKINYI…………….…….……………......APPLICANT VERSUS REPUBLIC……………………………..…………………..…....RESPONDENT **RULING** 1. The Applicant, Elisha Okinyi Nyainda, through his father who is duly authorised, moves this Court seeking revision of the subordinate court’s ruling in Criminal Case No. MCCR E497/2026 at Kibera Law Courts, wherein bail was declined pending preparation of a pre-bail report. 2. The Applicant contends that he was a victim in the incident giving rise to the charge of robbery with violence. He avers that while at the complainant’s restaurant near the University of Nairobi hostels, an altercation arose involving non-payment for food by a fellow student. During the incident, the complainant allegedly attempted to stab another student with a kitchen knife, but instead injured the Applicant on the right arm. Police intervened and he received first aid at the scene. 3. It is further contended that despite these circumstances, the Applicant was charged while the complainant was not. He is a first-year university student pursuing a Bachelor of Arts degree and is due to sit examinations commencing 18th May 2026. He argues that continued detention prejudices his education and infringes his constitutional rights. 4. The Applicant submits that bail was declined solely on the basis that a pre-bail report was required, whereas a co-accused in separate proceedings was admitted to bail without such requirement. He asserts this to be arbitrary, discriminatory and contrary to Article 49 of the Constitution. He maintains that he has a fixed abode within university hostels, is not a flight risk, and is willing to comply with all bond terms. 5. He further avers that he is asthmatic and that his health has deteriorated in custody. He undertakes to attend court and comply with all conditions imposed. 6. Additionally, the Applicant states that he fears arrest by DCI officers following statements from arrested persons implicating him, and that seized exhibits have limited his ability to present evidence. He therefore seeks protection of his liberty pending trial. 7. The Applicant relies on Articles 49(1), 22(1) and 29 of the Constitution, asserting that the right to bail is a fundamental right and that courts retain jurisdiction to intervene where liberty is at risk of arbitrary restriction. 8. At this interlocutory stage, the Court is not concerned with the merits of the prosecution case but with safeguarding constitutional rights against unlawful or disproportionate State action. 9. Article 49(1) guarantees the right to bail on reasonable conditions unless compelling reasons are demonstrated. The Court is satisfied that bail pending trial may be granted where circumstances disclose a real and not speculative risk to constitutional rights. 10. Article 22(1) further permits any person to approach the Court where a right is threatened or infringed. The threshold is whether the apprehended harm is imminent, credible and not remote. 11. Having considered the material placed before the Court, I am satisfied that the Applicant has demonstrated a sufficient basis for limited intervention to protect his liberty pending compliance with pre-bail procedural requirements. 12. Accordingly, the Court orders as follows: 13. The Applicant is admitted to bail pending trial in the sum of Kshs. 50,000, to be deposited in Court. 14. A contact person shall submit a copy of their national identity card or passport. 15. A letter from Nyumba Kumi confirming residence shall be filed. 16. The bail terms are temporary and shall lapse upon filing of the pre-bail report. 17. The Applicant shall attend court as directed by the trial court. Orders accordingly. **Ruling dated and delivered virtually on this 25th day of May 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Midenga for the Applicant Mr. Mutuma for the Respondent Karimi Court Assistant