https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11750

Republic v Issak (Criminal Revision E060 of 2026) [2026] KEHC 11750 (KLR) (Crim) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 11750 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Revision E060 of 2026 AM Muteti, J July 3, 2026 Between Republic Applicant and Sabrin Abdikadir Issak Respondent Ruling Introduction 1.The state by way of letter dated 24th June, 2026 urged this court to revise the orders of the trial magistrate issued on the 24th day of June, 2026 ordering the accused person to be released on a bond of Ksh. 500,000 with a surety of similar amount or in the alternative a cash bail of Kshs. 500,000. 2.The state moved the court under the provisions of Section 362 as read with 364 of the Criminal Procedure Code, thereby invoking the revisionary jurisdiction of the High Court. 3.The crux of the Applicant’s application being that the Respondent holds two passports issued by the Governments of Kenya and Ethiopia. 4.The respondent is also said to hold a driving license issued by the Somali government. 5.the state therefore contended that if the Respondent was to be released on the terms issued by the learned Honorable magistrate she would most likely abscond and not return for a trial. 6.Further, the prosecution argued that upon arrest, the Respondent failed to produce the Ethiopian passport thus heightening the fear that in the event she is released on bail, she would never return to court to face trial and would most likely flee the country using the Ethiopian passport. 7.The state therefore, urged this court to find the orders issued by the Honorable magistrate in granting bail, were irregular and improper considering that, those facts were brought to the attention of the learned Honorable magistrate by way of an Affidavit, thus the High court should intervene and vary the orders. 8.The Respondent opposed the application arguing she has no intention to flee the country and that she has a fixed abode in Wajir within the Republic of Kenya thus she was entitled to be released on bail. 9.The Respondent’s Counsel told the court that the Respondent had all along cooperated with investigators prior to her being charged. 10.The Respondent further argued that the terms imposed by the Honorable Magistrate were reasonable and should not be disturbed. The Respondent urged the Court to uphold her rights under Articles, 49 (1)(h) and 50 (2) of the Constitution. 11.Mr. Mukwana Advocate for the Respondent emphasized the fact, that the Respondent should be presumed innocent of the charges until proven guilty, thus her right to liberty should not be curtailed. 12.The Respondent was said to enjoy close familial ties and should have no problem getting contact persons to stand surety for her in the event the court decides to impose such a condition. Analysis and Determination 13.The High under Article 165(6) of the Constitution exercises supervisory jurisdiction over the Magistrate’s court, that power is meant to allow the High Court intervene in appropriate cases where a litigant moves the High Court to examine the regularity, propriety, correctness and or legality of a decision of the trial court. 14.The Legislature through Sections 362 & 364 of the Criminal Procedure Code specifically affirmed the authority of the High Court to call for records of the lower court either on its own motion or at the instance of a party. 15.In the case of Republic vs. James Kiarie Mutungei [2017] eKLR Nyakundi J. highlighted the role of the high court in exercising the revisionary power vested upon it by the Constitution and statutory provisions as follows;“the rationale of the High Court as a revisionary authority can be initiated by an aggrieved party or suo moto made by the court itself, to call for the record relating to the order passed or proceedings in order to satisfy itself as to the legality, propriety or correctness of the order in question. The scope of revision therefore is more restrictive in comparison with the appellate jurisdiction which requires the high court to rehear the case and evaluate the evidence in totality to come to a decision on the merits.” 16.The party that moves the High Court is under duty to demonstrate the irregularity on the Order or the incorrectness of the decision that they would wish the High Court to review. 17.in the instant case, the Applicant’s complaint is that the admission of the Respondent to bail was irregular and the orders issued thereof, were improper in view of the fact that the prosecution had presented material by way of an Affidavit that demonstrated that the Respondent is a flight risk. 18.At the hearing of the Application, prosecuting Counsel Mr. Mogere, urged this court to consider that in the event bail is not reversed, this Court, should impose conditions that would ensure that the Applicant turns up for trial as and when required to do so. 19.The right to bail is not absolute but is subject to the consideration of other important factors such as; whether the accused person is likely to return to court for his trial upon release on bail. 20.The court is also enjoined to consider whether it is in the interest of administration of justice to admit an accused person to bail taking into account the circumstances of the case. 21.A Court should be reluctant to grant bail where it is shown in all likelihood that the accused person is unlikely to show up once released on bail. To release a person on bail against information that prima facie demonstrates that the individual is a flight risk, such action would be against the interest of the administration of justice and would serve to undermine the justice process. 22.The Court, therefore has to weigh the right of the accused to liberty against other competing concerns such as the need to avoid undermining the justice of the case. The Court may strike a balance by setting conditions that would ensure the return of the accused person to face trial. 23.Justice Onyego in Republic v Ali & 2 others (Criminal Case E002 of 2024) [2024] KEHC 14381 (KLR) (19 November 2024) (Ruling) Neutral citation: [2024] KEHC 14381 (KLR) held that “The imposition of terms of bail, if necessary, must similarly be for the purposes of ensuring the attendance of the accused at the trial and ought not to be based solely on the sentence that the accused stands to serve if convicted. See Republic v Wycliffe Nyakwana Nyamweya (Criminal Revision 135 of 2016) (2016) KEHC 7930 (KLR) (Crim) (28 July 2016) (Ruling) where the court held that;“It is therefore my view that the discretion to grant bail and set the conditions rests with the court. In all cases where the court is called upon to exercise its discretion in regard to whether or not it should grant bail pending trial, the most important consideration is whether the accused will attend court during trial”. 24.In Republic v Danson Mgunya & Another [2010] eKLR where M. K. Ibrahim J (as he then was) held thus;“As a matter of fact, all other criteria are parasitic on the omnibus criterion on availability of the accused to stand trial.’’ 25.This Court, has considered the material presented by the prosecution in this court as well as the lower court. 26.The Court has also addressed its mind to the affidavit sworn by the Respondent and the Submissions by counsel. The Court notes from the record of the lower court that the accused person faces six counts one of which is failure to disclose dual citizenship under Section 8 (3) as read together with 8 (4) of the Kenyan Citizenship and Immigrations Act, therefore it is clear to the Court that the question of citizenship of the Respondent will be a matter for consideration and determination by the trial court. 27.The Honorable magistrate without more should have addressed her mind to the conditions to impose upon granting bail, in order to ensure that the Respondent remains within the jurisdiction of the Court. 28.The Learned Honorable magistrate having failed to do so, this court finds that the Order for a bond of Kshs. 500,000 plus a surety of a similar amount or in the alternative a cash bail of Kshs. 100,000 was irregular, improper and incorrect. 29.This Court therefore, has no hesitation in revising the Order and in substitution therefore makes the following Orders;i.The Respondent shall be released on a bond of Kshs. 500,000 plus two Kenyan sureties of a similar amountii.The Respondent and her sureties should deposit their Kenyan Passports in Court.iii.The Respondent shall not leave the jurisdiction of this country until Milimani Chief Magistrate Criminal Case Number E339/2026 is heard and determined or until otherwise ordered by this Court.iv.The Respondent shall report to the Investigating Officer once every month on every Friday of the first week of the Month.v.The Director Immigrations shall immediately place travel restrictions in the immigration database not to allow the Respondent to exit the borders of this country during the pendency of the trial in Milimani Chief Magistrate Criminal Case Number 339/2026 R V Sabrin Abdikadir Isaak until otherwise ordered by this court.vi.In the event the Kenyan passport of the respondent is by chance held by the investigating officer, Counsel for the respondent shall indicate to the Deputy Registrar of this court that position who shall proceed to approve the bond upon confirmation by the prosecution counsel. 30.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JULY, 2026.A M. MUTETIJUDGEIn the presence of:Court Assistant: HabibaMogere for the stateMukwana for Applicant