https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12913

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL REVISION NO. E072 OF 2026** **SENIOR PRINCIPAL MAGISTRATE, MARIAKANI …………..…………….…APPLICANT** **VERSUS** **SAMSON JINDWA JIRA**.**………………………........……….…….…………… RESPONDENT** **RULING** 1. The Respondent herein was charged with the offence of preparation to commit a felony contrary to Section 308(2) of the Penal Code. By a letter dated 24.7.26, the Applicant states that judgment was reserved for 17.7.24 but on that date the Respondent absconded. A warrant of arrest was issued against the Respondent and judgment deferred to 31.7.24. As the Respondent was yet to be arrested, judgment was delivered, his absence notwithstanding. The Respondent was convicted in absentia and sentenced to 3 years imprisonment commencing from the date of his arrest. 2. The Applicant’s complaint is that in spite of the Respondent absconding, the trial court ordered that the cash bail on which he had been released be refunded to the depositor. The Applicant thus seeks that this Court reviews that order. 3. This Court has supervisory jurisdiction over subordinate courts. Article 165(6) and (7) of the Constitution provide as follows: ***(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.*** 1. In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice. 2. Upon obtaining the record of criminal proceedings in subordinate courts, this Court is required to examine the same and satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. Section 362 of the Criminal Procedure Code provides: ***The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.*** 1. Section 364 confers upon this Court the power of revision as follows: 2. ***In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—*** 3. ***in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;*** 4. ***in the case of any other order other than an order of acquittal, alter or reverse the order.*** 5. ***…*** 6. I have perused the record of the proceedings in question with a view to satisfying myself of the correctness legality or propriety of the order complained of. I note that the Respondent was on 31.3.23 released on cash bail of Kshs. 15,000/=. He attended court faithfully until the date of judgment when he absconded and a warrant of arrest was issued. Having not been arrested, judgment was delivered and he was convicted and sentenced in absentia. In its judgment, the trial court cancelled the Respondent’s bond terms. Curiously however, and in an apparent contradiction, the trial court ordered that “any cash bail to be released to the depositor.” 7. The purpose for which cash bail is paid to court is to secure that an accused person attends court as and when required. If an accused person faithfully attends court at every hearing, the money is refunded upon the conclusion of the case. Where however, an accused person absconds, as in the present case, such money deposited in court is forfeited. 8. In the Judiciary’s Bail and Bond Policy Guidelines March 2015, bail is defined as follows: ***Bail – An agreement between an accused person or his/her sureties and the court that the accused person will attend court when required, and that should the accused person abscond, in addition to the court issuing warrants of arrest, a sum of money or property directed by the court to be deposited, will be forfeited to the court.*** 1. In the present case where the Respondent has absconded, the order by the trial court that cash bail be released to the depositor clearly negates the purpose for which the cash was deposited. Such order is irregular and cannot stand. 2. In the end I find that the application is merited and the same is allowed on the following terms: 3. The order of the trial court that the cash bail be released to the depositor is hereby set aside. 4. The cash bail shall continue to be held by the trial court until such time as the Respondent shall be arrested and presented to the trial court. **DATED SIGNED and DELIVERED in MALINDI this 19th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**