https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13133

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **MISC. CRIMINAL APPLICATION NO. E128 OF 2026** SELINA NDINDA NDONYO……………………………………APPLICANT VERSUS REPUBLIC…………………………………………………………RESPONDENT **RULING.** 1. Before the trial court, the applicant is facing two counts of trafficking in narcotic drugs contrary to section 4(a)(i) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994, as amended by the Narcotic Drugs and Psychotropic Substances (Control) Amendment Act, 2022. She pleaded not guilty and applied to be released on bail pending trial. 2. Vide a ruling delivered on 17th April 2026, the trial court dismissed the application for bail pending trial. 3. Aggrieved by that decision, the applicant approached this Court by an application dated 15th June 2026, seeking revision of the trial court's decision. The grounds in support of the application are, in substance, that the trial court declined bail principally on the basis that the applicant is facing another criminal case, MCCR E087 of 2023, pending before the JKIA Chief Magistrate's Court. It was contended that the trial court treated the pendency of that case as an antecedent. The applicant maintains that she is presumed innocent under the Constitution, having not been convicted of any criminal offence; that she has continued to abide by the bond terms imposed in the other case; that she is not a flight risk; that she has not interfered with witnesses; and that she attends court whenever required. She is willing to provide a surety and to abide by any reasonable conditions imposed by the Court. 4. I have considered the application, the arguments advanced on behalf of the applicant, the record of the trial court and the applicable law. 5. Article 49(1)(h) of the Constitution guarantees every 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."** 1. The constitutional right is therefore the rule, while denial of bail is the exception. The burden lies upon the prosecution to demonstrate the existence of compelling reasons sufficient to justify limitation of that right. Section 123A of the Criminal Procedure Code provides: **"(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 his 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 it is likely that he would fail to surrender to custody; or** **(b) should be kept in custody for his own protection."** 1. Paragraph 4.9 of the Bail and Bond Policy Guidelines similarly provides: **"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."** 1. I have carefully reviewed the record of the trial court. The applicant faces serious charges of trafficking in narcotic drugs. The seriousness of the charges is undoubtedly a relevant consideration under section 123A of the Criminal Procedure Code. However, the seriousness of an offence, standing alone, does not constitute a compelling reason for denial of bail. It must be considered together with the particular circumstances of the case and the specific risks identified by the prosecution. 2. The record shows that, before determining the application for bail, the trial court directed that a pre-bail report be prepared. The report forms part of the record and was favourable to the applicant. It recommended that she be released on bail/bond. The report therefore did not identify any material concern regarding her likelihood of attending court or otherwise complying with reasonable conditions of release. 3. The prosecution nevertheless opposed the application. An affidavit sworn by PC Neuster Jerotich on 2nd April 2026 was filed before the trial court in opposition to the applicant's release on bond. The concerns raised were that the applicant was facing another criminal case involving similar charges, namely MCCR E087 of 2023 before the JKIA Chief Magistrate's Court, and that she was allegedly still involved in a narcotic drug syndicate. The prosecution also relied upon the seriousness of the charges facing the applicant. 4. These concerns were properly placed before the trial court and were matters which the court was entitled to consider. Indeed, section 123A expressly requires the Court to have regard to the character, antecedents and associations of an accused person. The existence of another pending criminal case may, in an appropriate case, be relevant to that assessment. However, the pendency of a criminal case cannot, without more, be treated as proof that an accused person has previously engaged in criminal conduct. 5. A pending charge remains an allegation and not a conviction. The presumption of innocence under Article 50(2)(a) of the Constitution applies until an accused person is proved guilty according to law. 6. In declining bail, the learned trial magistrate expressly considered the fact that the applicant was facing a similar charge of trafficking in narcotic drugs before another court. The learned magistrate treated the pendency of that case as an antecedent and considered it to constitute a compelling reason for denying bail at that stage of the proceedings. The decision was therefore not reached arbitrarily. It was informed by material placed before the court and by considerations which fell within the matters contemplated under section 123A of the Criminal Procedure Code. 7. The question for this Court, however, is whether that consideration, in the circumstances of this case, was sufficient to constitute a compelling reason for continued denial of bail. In my view, it was not. 8. The applicant is already admitted to bond in the other case. More importantly, there is nothing on the record demonstrating that she has breached the terms upon which she was released in that matter. There is no evidence that she has absconded, failed to attend court, interfered with witnesses or otherwise failed to comply with the conditions imposed upon her. On the contrary, the applicant asserts, and the record does not controvert, that she has continued to attend court and abide by the terms of the bond granted in the other case. 9. This is significant because the primary purpose of bail or bond is to secure the accused person's attendance at trial. The mere fact that an accused person is facing another criminal charge does not, in itself, establish that she will abscond from the present proceedings. Indeed, her conduct while on bond in the other case provides objective material from which her compliance with court orders may properly be assessed. 10. I have also considered the prosecution's assertion that the applicant remains involved in a narcotic drug syndicate. This is a serious allegation and was properly brought to the attention of the trial court. However, the record does not disclose sufficient evidence demonstrating that, if released on reasonable terms, the applicant would continue to engage in such activities or that her release would compromise the administration of justice. A bare allegation of continuing involvement in a criminal syndicate, without cogent material demonstrating the risk relied upon, cannot by itself displace the constitutional right to bail. 11. The Court must also bear in mind that the applicant has not been convicted of either the present offences or the offence in the other pending case. The presumption of innocence is not displaced merely because an accused person has more than one pending criminal case. To treat the existence of the other case, without evidence of breach of bail or other compelling circumstances, as conclusive proof of an adverse antecedent would risk converting an unproven allegation into a finding of guilt. 12. I am also guided by the fact that the trial court had before it a favourable pre-bail report recommending the applicant's release. There was no material placed before this Court demonstrating that the circumstances identified in that report had materially changed or that the applicant had, since being admitted to bond in the other matter, engaged in conduct demonstrating a likelihood of absconding or interfering with the administration of justice. 13. The applicant has offered to provide a surety and to abide by any reasonable conditions imposed by the Court. The concerns raised by the prosecution can, in my view, be adequately addressed through appropriate and proportionate bond terms. Bail is neither intended to punish an accused person before conviction nor is pre-trial detention intended to operate as a substitute for punishment. Where the identified risks can reasonably be managed through conditions of release, continued detention is not justified. 14. I therefore find that, although the prosecution raised matters which were properly considered by the trial court, those matters, considered cumulatively and against the constitutional presumption in favour of liberty, do not amount to compelling reasons sufficient to justify denial of bail. The applicant's compliance with the bond terms in the other pending case is particularly persuasive in assessing the risk of non-attendance. 15. In the circumstances, I find merit in the application for revision. The ruling of the trial court dated 17th April 2026, to the extent that it denied the applicant bail, is hereby set aside. The applicant is hereby admitted to bail pending trial on the following terms: 16. The applicant shall execute a bond of Kshs. 1,000,000 with one surety of a similar amount. 17. The applicant shall deposit her passport in court and shall not travel outside the jurisdiction of the court pending hearing and determination of the case or without the leave of court. 18. The applicant shall report to the Investigating Officer every month on a day to be agreed upon until the conclusion of the case. 19. The applicant shall not interfere, directly or indirectly, with any prosecution witness or the evidence in the case. Orders accordingly. **Ruling dated and delivered virtually this 25th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**