https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11401

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT MACHAKOS** **CRIMINAL CASE NO. E028 OF 2023** **REPUBLIC ............................................................................... PROSECUTOR** **VERSUS** **EVERLYN WANZA KATUMBU .......................................... 1ST ACCUSED** **FAITH NTHEMBA KYALO .................................................. 2ND ACCUSED** **PHYLLIS NZULA MBITHI ................................................... 3RD ACCUSED** **RULING** 1. The 3rd Accused, **Phyllis Nzula Mbithi**, took plea in this matter on 15th November 2023. Following this Court's ruling of 13th December 2023, which reserved a final determination on bond pending pre-bail reports, and upon consideration of a pre-bail report dated 6th April 2024, the 3rd Accused was admitted to bond in the sum of Kshs 1,000,000/= pending the hearing and determination of Criminal Case E028 of 2023, in which she jointly stands charged with murder contrary to **Section 203 as read with Section 204 of the Penal Code.** 2. The 3rd Accused has since remained in custody, as neither she nor her family has been able to raise the said sum. 3. By a Notice of Motion dated 19th March 2026, brought under **Article 49(1)(h), 50(2)(a) and 25 of the Constitution and Sections 123 to 125 of the Criminal Procedure Code**, supported by her own affidavit and a Certificate of Urgency, the 3rd Accused sought a review of the said bond terms. **Submissions** 4. The application came up for hearing virtually on 23rd April 2026 at 11.29 a.m, Coram Hon. E. N. Maina, J., with Mr. Masila appearing for the State and Mr. Maina appearing for the 3rd Accused. 5. Mr. Maina, for the 3rd Accused, relied on the application dated 19th March 2026. He submitted that the 3rd Accused took plea on 15th November 2023 and was granted bond of Kshs 1,000,000/= on 13th December 2023, and that she has been incarcerated ever since as the family has not been able to post the bond. He submitted that the 3rd Accused's mother and sister, being her only close family, are jobless, and that the family's only land is untitled and cannot secure the said bail terms. He submitted that the family has instead been able to secure Motor Vehicle KBW 996P, Toyota Corolla, valued by the Automobile Association of Kenya at Kshs 600,000/=, and placed before Court a certificate of valuation and inspection, an NTSA registration certificate, and a further report from the Automobile Association, all dated 16th December 2025. He further submitted that the 3rd Accused is a single mother of two minors, aged 6 and 12 years, who are dependent on their grandmother, who is ailing and unable to cater for their livelihood. He prayed that the motor vehicle be accepted as security for the 3rd Accused's release, that the bond be reduced from Kshs 1,000,000/= to Kshs 600,000/=, and that the 3rd Accused's mother and sister be accepted as her sureties. 6. Mr. Masila, for the State, opposed the application vide grounds of opposition dated 23rd April 2026. He submitted that the bond of Kshs 1,000,000/= had been granted after the State opposed the 3rd Accused's release vide an affidavit dated 14th November 2023, and after a pre-bail report dated 6th April 2024 in which the probation officer had recommended that the bond terms be withheld until the prosecution witnesses had testified, and that the Court, in granting bond notwithstanding that recommendation, had exercised its discretion after considering all the circumstances and the Bail and Bond Policy Guidelines. He submitted that there were no new circumstances to warrant a review, as the same pre-bail report had already documented the 3rd Accused's personal circumstances, including that she has children, and had indicated that the family holds a title deed capable of securing the bond. He submitted that the 3rd Accused had not addressed why she was being evasive on this point, and that, were the Court inclined to allow the application, the State would pray that a fresh pre-bail report be obtained. 7. In reply, Mr. Maina submitted that the reference to titled land was made in error, as the land in question, though it exists, is untitled, and that there was no reason the 3rd Accused would have remained in custody for this length of time had the family in fact held a title capable of securing her release. He submitted that the suggestion that the 3rd Accused was being evasive was neither here nor there, and that there was no rule of law requiring that a bond review await the testimony of all prosecution witnesses. He submitted that the State's request for a further pre-bail report was, in the circumstances, unfair. 8. At the close of submissions, the Court reserved its ruling for 27th July 2026, with a routine mention on 7th May 2026. **Analysis and Determination** 9. This is an application for review, and not a fresh application, for bond. The right to bail or bond under **Article 49(1)(h) of the Constitution** is not extinguished by an earlier grant of bond, and the Court retains jurisdiction to review the terms where circumstances demonstrate that the terms as set are no longer reasonable or have become an impediment to the constitutional right rather than a reasonable safeguard of the accused's attendance. 10. **Article 49(1)(h)** entitles an accused person to be released on bond or bail on reasonable conditions. A bond figure that an accused person is demonstrably unable to raise, over a sustained period, risks converting the right to bail into a right in name only, contrary to the presumption of innocence guaranteed under Article 50(2)(a) and the letter and spirit of the Bail and Bond Policy Guidelines, which caution against pre-trial detention operating as punishment. 11. This principle finds support in ***Ramadhan Iddi Ramadhan & 5 Others v Republic*** ***[2019]*** *eKLR,* where the court set aside bond terms found to be punitive and excessive, holding that bail conditions must be pegged to the legitimate purpose of securing attendance in court and not used as a de facto tool of continued detention. Similarly, in ***Cyril Kipruto Serem v Republic*** ***[2020] eKLR***, the Court held that *“****terms of bond are not meant to punish the accused****”* for the charge levelled against him, and cautioned that bond terms are not an approximation of the value of the subject matter of the charge. 12.The Court also draws guidance from ***Kainga & 4 Others v Republic* [2024] KEHC 1018** in which bond terms were reviewed downwards upon proof that the terms earlier set were beyond the applicants' means, and from ***Kariuki v Republic*** **[2025] KEHC 4580** KLR, in which the court reviewed bond terms of Kshs 1,000,000/= with a surety of a similar amount after the accused had spent close to a year in custody unable to raise the sum. The Court in that case reaffirmed that ***“bail or bond terms must not be excessive or unreasonable****”*, and that they ought, as far as possible, to be tailored to what the accused can realistically meet while still reflecting the gravity of the offence. 13. As to the dispute over whether the family holds titled land capable of securing the bond, counsel for the 3rd Accused clarified that the reference to titled land was made in error, and that the family's land, though it exists, is untitled. No title document or specific parcel reference was placed before this Court by the State to rebut this clarification. In the absence of any documentary rebuttal, the bare assertion that the family holds a title deed, without more, is not a sufficient basis to defeat an otherwise properly supported application. Should the State later obtain concrete evidence of a title deed capable of securing the 3rd Accused's bond, it can apply for a further review. 14. As to the State's request, made in the alternative, for a fresh pre-bail report, I do not find this necessary. The pre-bail report already on record, dated 6th April 2024, canvassed the 3rd Accused's personal circumstances, including her family and her minor children. There is no legal requirement that a bond should review await the testimony of all prosecution witnesses. The State has not shown any change in the 3rdAccused's circumstances since the last pre-bail report that would warrant a fresh probation inquiry to be sought. To require another pre-bail report, more than two years into the 3rd Accused's continued custody, would in my view, only protract this matter and occasion delay. 15.I have carefully considered this application. The reasons that informed the initial bond terms, being the seriousness of the charge and the need to secure attendance of the accused persons remain paramount and have not been displaced. However, the Applicant (3rd Accused) asserts her inability to meet the bail terms and suggested the availability of a suitable alternative form of security. She now wishes to be released upon deposit of a log book for a motor vehicle valued at Kshs.600,000/. In my view, a logbook, is not sufficient security in the circumstances of this case. I am not persuaded that an accused faced with a death sentence would turn up in court when released on such a low value motor vehicle. Accordingly, the bond terms shall not be varied as prayed, but shall remain the same as granted to the 2nd accused person by Muigai J on 11th July, 2024 to wit a bond of **Kshs.500,000/-** with one surety of like amount. It is so ordered. **Ruling signed, dated and delivered virtually through Microsoft Teams on this 27th Day of July, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Masila for the State Mr. Mutava Advocate for 1st & 2nd Accused Mr. Maina for 3rd accused All 3 accused persons Miriam - Court Assistant/Interpreter