[2025] KEMC 140 (KLR)

Republic v Wanjiku & another (Criminal Case E901 of 2025) [2025] KEMC 140 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KEMC 140 (KLR)

Republic of Kenya

In the Nakuru Law Courts

Criminal Case E901 of 2025

PA Ndege, SPM

June 12, 2025

Between

Republic

Prosecution

and

Samuel Gitau Wanjiku

1st Accused

Isaac Maina Njoki

2nd Accused

Ruling

1. This ruling arises from the action by the police herein. Bondeni police station, of releasing the 2nd accused person herein, ISAAC MAINA NJOKI, on police bail of Kshs. 2,000/- on 01/05/2025, even after having formally charged him alongside the 1st accused person. The accused was not presented for the plea on 30/04/2025 and also on 02/05/2025. This ruling is therefore meant to resolve the question of the legality of the police action in releasing the second accused, Isaac Maina Njoki, on cash bail after he had already been formally charged alongside his co-accused before this court.

2. The accused persons were arrested on 28th April 2025 and charged with stealing contrary to Section 268(1) as read with Section 275 of the Penal Code. On 30th April 2025, the charges were presented before this court, which assumed jurisdiction over the matter. However, the plea was deferred to 2nd May 2025 due to administrative challenges. It should however be noted that a trial commences by filing a charge sheet in a subordinate court, and in this case, the trial commenced on 30/04/2025 and the million-dollar question is whether the police still had the jurisdiction to release such an accused on police bail even after the trial against him, alongside his co-accused, had already commenced before the court. In other words, does the police have concurrent jurisdiction to release an accused person on bail after the accuse has been formally charge in a court of law?

3. On 2nd May 2025, the first accused attended court, but the second accused failed to appear, and medical reasons were cited for his non-appearance. On 23rd May 2025, the police at Bondeni Police Station informed the court that they unlawfully released the second accused on cash bail of Kshs 2,000 without judicial authorization, who subsequently absconded, thereby requiring the issuance of a warrant of arrest.

4. Article 49(1)(h) of the Constitution provides that an arrested person has the right to be released on bail, unless compelling reasons exist to justify denial of bail. The 2nd accused, Isaac Maina Njoki, was therefore entitled to bail rights, but the procedural framework required bail to be judicially determined after his charges, alongside those of his co-accused, having been formally presented before court. It should be noted that while bail is a constitutional right, it must be granted within statutory limits—and in this case, police overstepped their authority by granting bail post-arraignment without judicial approval.

5. Police bail would have been granted herein, but not after the formal charging of and accused person alongside his co-accused. Based on applicable law, this Court finds:(a)The police lacked jurisdiction to grant bail post-arraignment on 30th April, 2025, making the release procedurally irregular.(b)The Kshs 2,000 cash bail was improperly issued and should be forfeited to the court account immediately.(c)The accused posed a flight risk, and the police failed to conduct a proper bail evaluation, violating judicial bail principles (Mwangi v Republic [2024] KEHC 9453 (KLR)).(d)Failure to report bail decisions violated Section 37 CPC, rendering police discretion void.(e)The police became functus officio upon court jurisdiction commencement, making the bail legally void (Republic v OCS, Nairobi Central Police Station [2020] eKLR).

12. It is therefore hereby ordered as follows: -(a)A warrant of arrest be and is hereby issued against ISAAC MAINA NJOKI;(b)The OCS Bondeni Police Station shall:(i)Remit the Kshs 2,000 to the court for forfeiture within 7 days;(ii)File an affidavit within 14 days explaining this illegal bail;(c)The Court Administrator shall forward this ruling to the Inspector General of Police for administrative action.

CONCLUSION 13. While bail is a constitutional right, it must be exercised within procedural boundaries. Police circumvented judicial authority, thereby obstructing and /or interfering with the administration of justice in this matter. This Court reaffirms that post-arraignment bail must be judicially sanctioned, ensuring procedural fairness and preventing obstruction and/or interference with the due process.

DATED AND DELIVERED VIRTUALLY AT NAKURU THIS 12TH DAY OF JUNE 2025. HON. A.P. NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Court interpreter: JanetProsecutions counsel: Macharia1st Accused: Present2nd Accused: AbsentVictim Absent