https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11420

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **MISCELLANEOUS APPLICATION NO. E148 OF 2025** **(Consolidated with High Court Misc. Application No. E071 of 2026, E148 of 2025 being the lead file) (Arising from CMCR No. 1724 of 2024 — Republic v Patrick Wafula Kaburu, Bungoma Law Courts)** **PATRICK WAFULA KABURU........................................................APPLICANT** **VERSUS** **REPUBLIC.....................................................................................RESPONDENT** **RULING** 1. Vide a Notice of Motion dated 17th November 2025 and filed on behalf of the Applicant, Patrick Wafula Kaburu, remanded at Bungoma G.K. Prison, the Applicant seeks the following orders: 2. **That the matter be treated as urgent and given priority.** 3. **That the Applicant be permitted to appear in court in person.** 4. **That the Court summon all police officers who took part in a search of his residence, and the Officer Commanding Station (OCS) who is alleged to have authorised the operation, together with an account of that day's occurrence book (OB) entries.** 5. **That the Court exercise its judicial mandate under the Constitution of Kenya, 2010, on the ground that the prosecution violated and infringed upon his fundamental rights.** 6. The application is supported by an affidavit on the face of it, sworn by the applicant, Patrick Wafula Kaburu, wherein he deposes that his application is based on the claims raised regarding what the Police Officers did at his house. Further, he deposes that it would be kind for the court to consider his outcry on his health status and grant a bond 7. He further contends that this honourable court needs to be reminded of the Constitutional mandate that it ought to lean towards granting rather than derogating from the rights enshrined in the Bill of Rights. 8. This Court, by its own directive, ordered the consolidation of **High Court Miscellaneous Application No. E071 of 2026 with High Court Miscellaneous Application No. E148 of 2025**, the latter being designated as the lead file. This is because these applications involve the same parties, originate from the same underlying prosecution, and present substantially overlapping grievances. Consequently, this ruling disposes of both applications. 9. In **Misc. Application No. E071 of 2026,** the Applicant sought orders; 10. **Spent.** 11. **That he is granted a personal recognizance bond** 12. **Spent** 13. The Applicant filed the application on grounds that he had filed a complaint of corruption against the Bungoma Senior Resident Magistrate Court No. 7, Hon. T. Omono, with copies sent to the Deputy Chief Justice, the Chief Justice, Bungoma High Court Judge, the Secretary of the Judicial Service Commission, the Director of Public Prosecutions, and the Chief Magistrate of Bungoma. 14. That he therefore deemed it inappropriate for Hon. T. Omono to continue presiding over a case where he was the subject of a pending, unresolved complaint. That following this complaint, on 6th May 2026, Hon. T. Omono allegedly ordered over ten police officers from Kimilili to arrest him at his residence, during which he was assaulted, placed in the trunk of a vehicle, and subsequently presented before Hon. T. Omono to be remanded at Bungoma G.K. Prison under case **BUN/754/26**, purportedly as punishment. 15. Further, he stated that a related civil suit, **Kimilili ELC Civil Cause No. E044 of 2025**, filed by Wanyongo & Co. Advocates on behalf of Wilson Masungo Ngichabe, indicates that the criminal charge is intended to serve the interests of the complainant in that civil matter, citing precedence that criminal processes should not be employed to advance civil disputes. 16. The Applicant further contended that Hon. T. Omono refused to grant him a personal recognizance bond, despite the constitutional presumption of innocence and the principle that pre-trial detention should be a measure of last resort. The Applicant thereafter stated in open court that his arrest on 6th May 2026 was a "false arrest," that the surety who produced him was a "false surety" who did not know him, and that the warrant relied upon was not in his name. 17. The Respondent, in opposition to both applications, filed a replying affidavit stating that the substantive charge, destroying crops of cultivated produce contrary to **section 334(a) of the Penal Code**, arose from a land-lease dispute between the Applicant and one Wilson Masungo Ngichabe. 18. It was further stated that the Applicant was released on bond after taking plea on 18th March 2025. That however, he subsequently absconded, which prompted the issuance of summons and warrants against his sureties. That hence, his eventual arrest and presentation in court directly resulted from these proceedings. 19. The right to bail or bond is provided for in **Article 49(1)(h) of the Constitution of Kenya, 2010**, which provides that: "**An arrested person has the right... (h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released."** 1. Further, **Section 123 A** of the **Criminal Procedure Code** specifically provides; “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 in particular nature and seriousness of the offence, the character, antecedents, association, and community ties of the accused person the defendants record in respect of the fulfilment of obligations under previous grants of bail the strength of the chance of his having committed the offence**." 1. From the record of the trial court, this court notes that the applicant had in actual fact been granted a bond with surety by the trial court in **CMCR No. 1724 of 2024** which is the subject of this Misc. Application. Because the file at the time of the hearing of this Application was in the Custody of the Learned Trial Magistrate Hon T. O. Omono(SRM) awaiting judgement, the court directed that the excerpts of the trial court proceedings relevant to this Application be availed to the court to enable it put the Applicant’s complaint into context. 2. This was necessary for reasons that the two Applications as filed, and thereafter consolidated, were not only very convoluted and therefore extremely confusing, difficult to comprehend and understand, but were also so inelegantly drawn that is was extremely difficult for the court to appreciate exactly what it is that the Applicant was seeking. The only prayer that had a semblance of clarity was the prayer that the Applicant be released on bond. 3. From the excerpts of the record of the trial court that were availed, the court observed that the Applicant did avail a surety before the court and he was thereafter released on bond. That subsequent to his release the applicant failed to attend court on multiple occasions and there was a warrant out for his arrest which had been extended and on 16th March 2026. 4. The court also issued a summons for the surety. The surety one Rajab Nalianya Kaburu who stated that the applicant is his father attended court in answer to the summons on 8th April 2026 and explained that the applicant's absence was due to an underlying medical condition. Because he did not have the supporting medical documents in court, the court having considered his application directed that he avails the accused together with the medical records on 20th April 2026. 5. Come 20th April 2026, both the applicant and the surety failed to attend court and the court issued warrants of arrests for both with a mention on 6th May 2026. Subsequently on 6th May, the surety attended but did not avail the applicant. He told the court that when he told the applicant that he was required to attend court, the applicant told him that he was sick and when he pressed him and asked for the relevant medical documents the applicant got angry with him. That he shared with his brother what had transpired. The surety then requested for police escort to assist him arrest the applicant and produce him in court and the court obliged him. 6. The applicant was arrested and brought to court on the same day and upon being asked why he had failed to attend court, he told the court he had been unwell and did not know the date that he was to attend court. The surety on his part sought that he be discharged citing frustrations related to maintaining the applicant's attendance in court. 7. The court then ruled that having considered the representations made, he was of the finding that the applicant was not unwell but had wilfully absconded court, and by his conduct he had demonstrated that he was not one to abide by the bond terms. The court therefore cancelled the Applicant’s bond and discharged the surety. 8. Given this summary of what transpired in the trial court, the first thing of note is that contrary to the Applicant’s assertion before this court that he had been denied bond by the Hon trial Magistrate despite bond being a right under the **Constitution of Kenya**, the fact of the matter is that he was indeed granted bond by the trial court whose terms he met by availing a surety, which surety was approved by the court and the Applicant was released and was actually out on bond when the events that led to his subsequent incarceration occurred. 9. Further, the court also notes that contrary to the applicant's assertions made in open court that this was a “false surety” not known to the Applicant, the surety was actually his own son. This then demonstrates that there was indeed a known relationship between the applicant and the surety. 10. The second issue of note is that the Applicant was not incarcerated at Bungoma Prison as punishment because he had filed a complaint of corruption against the Hon. T.O. Omono, SRM, to the Judicial Service Commission, The Chief Justice, The Deputy Chief Justice, the Office of the Director of Public Prosecutions *et al*, the reason as the record of the trial court has revealed, is because the Applicant jumped bail, a warrant for his arrest was issued and was in force, his surety was summoned, the said surety eventually sought to be discharged after he availed the accused person in court under arrest with the assistance of the police whose help he himself sought from the court. 11. Further the record of the trial court also shows that the applicant was afforded an opportunity to submit an explanation for his absence prior to the cancellation of the bond and upon review of the reasons, the trial court deemed them unsatisfactory and cancelled the applicant’s bond. 12. The third and last thing of note is that the police officers that went to arrest the accused did not do so at the behest of the court and/or at the bidding of the court on its own motion allegedly because the Hon Magistrate was bent on punishing the applicant for reporting him to the authorities as herein summarised, it was at the behest of the surety who is the Applicant’s own son, and for the reasons already herein explained. 13. Additionally, the court has reviewed the Office of the Director of Public Prosecution's decision to charge by letter **Ref. ODPP/BGM/CAM/2VOL.VII (70**) dated 2nd December 2024 addressed to the In-Charge, ODPP Kimilili. This decision to charge the Applicant by the relevant Constitutional body mandated to institute criminal proceedings as it deems appropriate Under **Article 157 of the Constitution** then negates the assertion by the Applicant that the criminal charge is intended to serve the interests of the complainant in a civil matter contrary to precedence that criminal processes should not be employed to advance civil disputes. 14. Consequently, having taken all the above into consideration, I find no illegality, impropriety, or irregularity in the decision of the Hon. T. M Omono(SRM) on all the allegations made against him by the Applicant herein to warrant review of the order of the cancellation of the Applicant’s bond. I am satisfied that the Hon trial Magistrate’s actions amounted a proper exercise of judicial discretion in the circumstances of the case as herein summarised. 15. On the allegation that the officers who arrested the Applicant assaulted him, seized substantial sums of money, an identity card, a mobile phone, a SIM card, and keys and also destroyed his property during the operations conducted in his house on various dates, the position is that these are issues that belong to the realm and purview of the trial court. This is particularly because the circumstances of these complaints being as they are, seeing as they are alleged to have arisen in the course of a trial already live before the Magistrate’s Court wherein the Hon Magistrate was already seized of the matter, and the said complaints made against the police were committed during the pendency of the trial, it is the trial court then that was the appropriate forum to handle any complaints by the Applicant arising in the course of the trial. 16. The trial court would then proceed by summoning the necessary and relevant officers and have them testify in response to the Applicant’s allegations on oath, be subjected to cross examination by the Applicant and thereafter make a well informed and considered evidence based determination. The said complaints cannot be determined by this court in the capacity of a court of 1st instance, by way of affidavit evidence, and through a Notice of Motion Application. 17. It is only if the Applicant is dissatisfied with the decision of the trial court, that he would then move this court by way of an appeal. All the above considered and in light of the conclusions that I have reached on each and every aspect of the Applicant’s Application, it is my finding that the said Application lacks merit and the same is accordingly dismissed in its entirety. 18. Right of Appeal 14 days **Read Dated and Signed at BUNGOMA on 23rd July 2026** **E. OMINDE** **JUDGE**