[2025] KEHC 4635 (KLR)

Republic v Kinyenze & 5 others (Criminal Case E039 of 2024) [2025] KEHC 4635 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4635 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Case E039 of 2024

LW Gitari, J

March 27, 2025

Between

Republic

State

and

Benson Matoi Kinyenze

1st Accused

Jospahat Maingi Matiti

2nd Accused

Kasinga Ndungu

3rd Accused

Jamea Muema Mathei alisa Muema Hohamed

4th Accused

Muema Kilonzo

5th Accused

Meshack Kyalo Kavulu

6th Accused

Ruling

1. What is pending before me is an oral application for review bond/bail terms by the accused person(s) herein based on various grounds. These are as follows:i.That the accused had a pending case but had been acquitted.ii.That with respect to the 3rd accused, he is an old man and has been ailing. That he is not likely to abscond. That the prosecution had raised an issue of security but that should not deny the accused bail as it is the duty of the police to maintain security.iii.That bail was denied as the accused had another case which has since been concluded and the accused were acquitted. That the ruling of the Judge did not say that the application cannot be renewed.iv.That the charges were pre-mature as the investigations are yet to be concluded.

2. The family of the deceased opposed the application. They contend that the court had given a ruling and if they are not satisfied, they can appeal to the Court of Appeal. That the same application was raised and the court denied them bail. That they applied for the review of the ruling before the Judge at Machakos but the same was declined. That there are other suspects who are at large and they are likely to interfere if they are released. That if there is an issue which has arisen, they can file a formal application rather than serve documents in court which they have not had an opportunity to look at. That the Judge had stated that there were adverse social inquiry reports and the Judge declined to give the accused bail as they are a flight risk. That bail can be denied if there be compelling reasons. It is further submitted that other issues have cropped up and reports have been made to the police and there are OB reports. The prosecutions counsel concerned with what the counsel for the deceased’s family submitted and also urged the court to look at the grounds under which bail was denied.

3. I have considered the application. I note that this is not a fresh application for bail. What the accused persons are seeking is a review of the ruling of this court which denied the accused person(s) bail. The issue for determination is whether this court has jurisdiction to review the ruling denying the accused person(s) bail.

4. Article 165 of the Constitution establishes the High Court and its jurisdiction. Under Article 165 (6) & (7), it is provided that:“(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”

5. The High Court exercises supervisory jurisdiction over sub-ordinate court and other bodies performing quasi-judicial functions but not over a superior court. The High Court may call for the proceedings of the sub-ordinate court and make such orders it considers appropriate for the administration of justice.

6. On the other hand, the Criminal Procedure Code (Cap 75 Law of Kenya) has no provision giving the High Court powers of revision of its own decisions. If it issues orders of reviewing it orders, it can only do so in the exercise of its inherent discretion. In such circumstance, the exercise of discretion should be done judiciously.

7. In this matter the Judge observed that the state had raised weighty issues. He ordered that social inquiry reports be filed. The Judge gave the ruling dated 24/10/2024 and denied the accused person bail. He also stated that the accused could re-apply for review at a later stage of the trial and the court will consider the application on the merits considering the circumstances. See the ruling dated 24/10/2024.

8. The accused filed the application dated 22/11/2024 which was heard by Justice Francis Rayola Olel sitting at Machakos High Court and he delivered his ruling on 17/12/2024. The Judge stated as follows:“I have considered the argument made. It is clear that bond was refused on 24/10/2024 and on 14/11/2024. No new grounds have been advanced to convince this court to vary or review the earlier orders issued by Hon. Justice Limo.”Further this application is an abuse of the court process as circumstances have not changed on the ground to warrant review of the said ruling. The application dated 22/11/2024 therefore lacks merits and is dismissed.”

9. It is my view that based on these two rulings and the objections raised by the state and the deceased’s family the present application is an abuse of court process. This court has exhaustively dealt with the issue. The application is without merits and is dismissed.

DATED, SIGNED AND DELIVERED AT KITUI THIS 27TH DAY OF MARCH 2025HON. LADY JUSTICE L. GITARIJUDGE