https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/123

Republic v Islam (Criminal Case E121 of 2026) [2026] KEMC 123 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEMC 123 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E121 of 2026 FM Mulama, RM May 14, 2026 Between Republic Prosecutor and Anwar Salim Islam Accused Ruling A. Background. 1.Before me for consideration is an application by the state seeking to have the accused person denied bail pending the hearing and determination of this matter. 2.The application as stated is supported by the supporting affidavit of No. 81769 CPL Andrew Omuriai sworn on 29/04/2026. 3.The application was strongly argued orally by the prosecution the same way it was opposed by Ms. Suheila advocate for the accused person. 4.The grounds in support of the application can be condensed into 2 main grounds to wit the accused being a flight risk because at the time of the arrest he tried to escape and warning shots had to be fired in the air in order to arrest him despite the fact that his accomplice managed to escape and secondly the seriousness of the offence. 5.In rejoinder the accused through Ms. Suheila objects to the application on grounds that the accused has 2 wives and 4 children the younger one being 8 months old who was delivered through cesarean section, the accused is asthmatic and suffers from muscles contractions and that the accused is innocent until proved guilty. Ms. Suheila conceded that indeed the offence is a serious one and that the court can grant stringent bail and bond terms and her client will be willing and ready to comply with those terms. 6.In response to submissions by Ms. Suheila Mr. Wawire for the DPP indicated that no treatment notes were availed to prove the allegation of the accused being asthmatic but was quick to add that even at the prisons he will have access to medication and all the other rights guaranteed to him. He observed that the grounds for denial of bail have not been opposed and/or controverted by any alternative facts. He prayed that the application be allowed. 7.I have considered these arguments,, the law, the constitution as well as the bail and bond guidelines. B. Issue(s) for Determination. 8.The only issue that commends itself to me for determination is whether or not the prosecution has proved any compelling reason(s) to deny the accused bail and/or bond. C. Analysis and Determination. 9.Article 49(1)(h) of the Constitution of Kenya gives an 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. 10.The fact that bail is a constitutional right cannot be gainsaid. Article 49(1)(h) of the Constitution is explicit that, unless there is some compelling reason, an accused person, be he a citizen or foreigner, ought to be released on bail, as a matter of right, pending the hearing and determination of his/her case. It provides that:“An arrested person has 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.Moreover, by dint of Article 50(2) of the Constitution, every accused person is entitled to the presumption of innocence. Hence, in the Bail and Bond Policy Guidelines, it is recommended that:The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts. 12.Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates 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 him 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 (whether or not subject to conditions) it is likely that he would fail to surrender to custody;(b)should be kept in custody for his own protection 13.Furthermore, in the Bail and Bond Policy Guidelines, it is restated as a general guideline in 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.” (Emphasis mine) 14.The Guidelines then offer the following non-exhaustive factors for consideration in bail applications:a.The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.b.The strength of the prosecution case.c.The character and antecedents of the accused person.d.The failure of the accused person to observe bail or bond terms.e.The likelihood of interfering with witnesses.f.The need to protect the victim or victims of the crime.g.The relationship between the accused person and the potential witnesses.h.The best interest of child offenders.i.The accused person is a flight risk.j.Whether the accused person is gainfully employed.k.Public order, peace and security.l.Protection of the accused persons. 15.In the case of Harish Mawjee & another v Republic [2020] eKLR Criminal Revision Case No 545 of 2020, Lessit J. (as she then was) held as follows:“There are certain overreaching principles that govern the administration of bail and bond by Courts. First of all, courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if necessary. Secondly, bond terms should not be arbitrary, but the court must consider the relevant factors affecting issuance of bond including penalty of offence and the accused’s ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. Fourthly, an accused has right to seek review of bond terms from trial court or high court or appeal….an accused can apply for review of bond terms given by the trial court. The application should be made before the trial court which granted the bond. If, however the accused is still aggrieved by the decision of the trial court, he can still approach the higher court for relief.” 16.While certain factors as enumerated above have been put in place to govern the grant and/or refusal or bail or bond, there is no known formula of how one would arrive at a given set of conditions. The operative word though is “reasonable” bail and bond terms. 17.From the above non-exhaustive factors am to consider during bail applications, some are applicable in this case. There is a mention of the likelihood that the accused person will leave the jurisdiction of the court and this is due to 2 main reasons one that shots had to be fired to prevent him from escaping and that his accomplice one Awadh Salim Islam escaped in the ordeal and he is yet to be arrested and also the application talks of the seriousness of the offence. 18.The right to bail being a constitutional right, a higher standard is placed on the prosecution to prove a compelling reason. It is not just enough to make allegations without proof. It is said by the Investigating officer that shots were fired at the time of the arrest to prevent the accused from escaping. No such incident report was filed in court save for a mere averment in the affidavit. I will not comment about the escape of his purported accomplice as that has no bearing in the consideration of bail for the accused herein. 19.This alleged shooting is also tied to the issue of the accused being a flight risk. For it to be said that the accused is a flight risk, it is not enough and/or it was not intended to mean that anyone who at the time of the arrest attempts to escape then is a flight risk. The intention in my view is an accused person who does have a fixed place of aboard and/or one who is likely to leave the country and the law and practice has always had a way of containing those who might leave the country by asking them to deposit in court their passports. This goes to explain that there must be real and compelling reasons before that right is denied. 20.In rebuttal of the allegation that the accused is a flight risk, it was the submissions of Ms. Suheila that the accused has 2 wives and 4 children. This insinuates that the accused has in fact 2 places of aboard. There is no reason stated to demonstrate how the investigating officer arrived at a conclusion that the accused is a flight risk. It is not enough to just mention that the accused is a flight risk. 21.Generally, the primary consideration in deciding whether or not to admit an accused person to bond/bail is whether the accused will turn up for his trial. The accused through his counsel has promised to turn up for hearing and while appreciating the seriousness of the offence, he has asked the court to give stringent bail terms. 22.Paragraph 3.1(d) of the Bail and Bond Policy Guidelines underpins the right to reasonable bail and bond terms as follows:d)Right to Reasonable Bail and Bond Terms:Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more that is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case. 23.I am persuaded and bound by the case of Mohamood Chute Wote & 2 others v Republic [2021] eKLR, where the Court held thus:“10.The key word is; “reasonable”. Thus, the question that arises is: what criteria should be used in determining what is reasonable? In my considered opinion, the starting point is the recognition of the fact, under Article 50(2) of the Constitution of Kenya, 2010 every accused person is presumed innocent until proven guilty. The purpose of bail and bond terms is to ensure therefore that the accused attends the trial. Further, the provisions of section 123A of the Criminal Procedure Code provides the relevant circumstances to be considered, including, nature and seriousness of the offence, character of the accused, record of compliance with previous bail and bond terms and strength of the evidence to be adduced.11.In the same vein, the provisions of; bail and bond policy guidelines, states first and foremost, bail or bond amount should not be excessive, that is, it should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case. (see Republic v Taiko Kitende Muinya (2010) eKLR)12.Further, bail determination must balance the rights of the accused person and the interest of justice. Consequently, bail or bond will only be denied where the prosecution presents convincing evidence to justify such denial and demonstrate, with convincing evidence that, his or her release will present risks, and that such risks cannot be managed, even with the attachment of appropriate conditions. As a result of the aforesaid, bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial.” 24.I am also persuaded by the decision of the Court in the case of Victor Kiprono Ngeni v Office of the Director of Public Prosecutions [2021] eKLR, where the Court held thus:“20.In granting bail, the court must ensure that bail or bond terms must not be excessive or unreasonable and should not be far greater than what is necessary to ensure or guarantee the accused person’s appearance before court. Where this is the case, it would be tantamount to a denial of bail, a right which is enshrined in the Constitution and the Criminal Procedure Code as outlined above. This position was expounded in the case Taiko Kitende Muinya (2010) eKLR.” 25.From the aforegoing the court therefore finds and holds that there are no compelling reasons advanced to warrant the denial of bond to the accused person and further that the court shall proceed and grant bond terms that are reasonable and as guided by the authorities referred to above. 26.However, before I conclude, I wish to point out 2 things. I called for a prebail report to be filed on or before10/5/2026 but the same was not filed and no reasons were advanced so it has not been considered in as much as it is not binding to court but it assists the court in understanding the other facts that are not before court. Secondly, the affidavit in support of the application for denial of bond for all intends and purposes was meant for a miscellaneous application in form and content but it was hurriedly filed in this matter when this was not a miscellaneous matter. 27.The investigation team should do a proper work when it comes to such applications. It should be dawn on them that this is a serious enterprise that seeks to limit a liberty of an accused person and nothing should be left to chance. I considered the averments therein in the spirit of article 159(2)(d) of the Constitution but going forward the court will not entertain such improperly filed affidavits. For heaven sake the affidavit at plea stage should not be speaking of detaining the respondent at Lamu police for 14 days to complete investigations yet charges have already been preferred and accused taken plea. Let some seriousness be a consideration when dealing with such cases in court. D. Conclusion. 28.There being no compelling reasons to deny bail as discussed above, the application for denial of bail is dismissed and the accused is admitted to bond in the following terms.a.The accused is granted bond of Kshs.250,000/= plus 1 surety of similar amount or in the alternative pay cash bail of Kshs.150,000/=.b.That the accused to deposit his passport in court in the event he has one in his possession.c.That in the alternative to (b) above the accused shall not leave the country without the express permission of this court until the matter is heard and determined.d.That the accused not to contact any witness in this case over this matter and/or any matters incidental to this case and as such contravention will lead to automatic cancellation of the bond terms. 29.It is so ordered. DATED, SIGNED AND DELIVERED AT LAMU COURT THIS…14TH …DAY OF....MAY…2026.F.M. MULAMARESIDENT MAGISTRATEIn the presence ofVivian Wambui ---- C/AIdris Tomno—DPPMs. Suheila for accusedAnwar Salim Islam.