https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11477

Shantel Wangui & another v Republic (Criminal Miscellaneous Application E021 of 2026) [2026] KEHC 11477 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 11477 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Miscellaneous Application E021 of 2026 DO Chepkwony, J July 16, 2026 Between Shantel Wangui 1st Applicant AMM 2nd Applicant and Republic Respondent Ruling 1.This is a ruling in respect of a Notice of Motion application dated 24th June, 2026 filed by the Applicants Shantel Wangui and A.M.M. who are facing two charges in Kenol Senior Resident Magistrate’s Court Criminal Case No.MCCR/E589/2026. 2.In Count 1, the Applicants are charged with the offence of arson contrary to Section 332 of the Penal Code. The particulars of the offence are that:“On the 19th day of May, 2026, at around 1815hrs at Kamahuha Girls High School, in Murang’a South Sub-County within Murang’a County, with others not before court willfully and unlawfully set ablaze one dormitory namely Lily Dormitory and students’ properties, the property of Kamahuha Girls High School all valued at Kshs.30,250/=.In count II, the applicants face a charge of conspiracy to commit a felony contrary to Section 393 of the Penal Code. The facts of this offence being that:“On the 19th May, 2026, at around 1815hrs at Kamahuha Girls High School, in Murang’a South Sub-County within Murang’a County, with others not before court you all jointly conspired to burn Lily Dormitory and students’ properties all the property of Kamahuha Girls High School. 3.The applicants were arraigned before the trial court on 4th June, 2026 whereby before they could take plea, the trial magistrate inquired when the 2nd Applicant was born, and she responded that she was born on 27th July, 2009, which means she is seventeen (17) years old and hence is a child in conflict with the law. The trial magistrate then directed that a probono advocate be appointed for the 2nd Applicant, who is a child in conflict with the law and proceeded with plea taking of the 1st Applicant, who pleaded guilty to both offences. 4.The matter was deferred to another date for the prosecution to give facts of the case, and it was then fixed for further mention on 9th June, 2026, on which day it was confirmed that Mr. Ngeresa, Advocate had been appointed and assigned as counsel for the subject on pro bono basis. Mr. Gatundu Advocate informed court he had been instructed to appear for the 1st Applicant and indicated the 1st applicant wanted to change plea. The charges and respective particulars were read out and explained to each Applicant and they each denied the same, upon which pleas of not guilty were entered for each Applicant. 5.The prosecution’s counsel, M/s Gathu, while noting the nature of offences against the applicants, their respective ages and their status as students, sought for pre-bail reports to be availed because of their security and public interests in view of the nature of offences they were facing. Through their counsel, the applicants sought to be released on reasonable bond/bail terms on the ground that they were school going. The court took note of the sentiments by all counsel for the State and the Applicants and called for pre-bail report for each applicant. 6.When the pre-bail information reports were filed on 24th June, 2026, the prosecution counsel objected to the applicants being granted cash bail in view of the nature of the offences they were facing and urged the court to note that the 1st Applicant was eighteen (18) years old and the 2nd Applicant, a flight risk. Counsel for the 1st Applicant, Mr. Gatundu reiterated that the applicant be released on a cash bail owing to their right to bail/bond since they were still presumed innocent until proven guilty. 7.In its ruling, the court took note of the nature of offences against the applicants, their prevalent nature in country as well as the views by different categories of persons who were interviewed in respect of the applicant’s backgrounds, character, social and economic status during the social inquiry and stated that the charges against the Applicants were issues of public interest and ordered that each applicant should be released on a bond of Kshs.200,000.00. 8.Aggrieved, the Applicants moved this court by the Notice of Motion application dated 24th June, 2026 seeking review of the bond terms that were imposed by the trial court in Kenol Senior Resident Magistrate’s Court Criminal Case No.MCCR/E589/2026. 9.It is the applicant’s contention that the trial magistrate denied them admission to reasonable cash bail and instead imposed a hefty bond of Kshs.200,000/- for each of them which is unattainable and beyond the means of their respective families given the prevailing harsh economic times and their status as students. That, as a result of this they have effectively continued to remain in detention which is against the presumption of innocence for any accused person, the best interests of the child with regard to 2nd Applicant and the risk of interfering with their education by losing an entire academic term enhanced. 10.Through their counsel, Mr. Gatundu, the Applicants canvassed the application orally on 7th July, 2026 whereby counsel reiterated that the bond terms the Applicants were granted were excessive, impunitive and beyond the reach of the applicant’s families. He argued that the said bond terms have effectively violated the Applicants’ right to liberty, their right to be presumed innocent until proven guilty contrary to Article 50(2) (a) of the Constitution, caused their absence in school and violated the best interests for the 2nd applicant contrary to Article 53 of the Constitution. 11.In response, Mr. Mwakio, counsel for the State appreciated the serious nature of the charges against the Applicants, who he stated were minors. He urged the court to exercise its authority and have a holistic view of the magnitude of the issues by calling for the original record of proceedings from the trial court and a pre-bail report to enable it consider the suitability of reviewing the bond terms that were issued by the trial magistrate. To which, Mr. Gatundu, Counsel for the Applicants informed court that the said documents were in the trial bundle from the trial court. And on the seriousness of the offences against the Applicants, he argued that they were yet to be prosecuted, hence are presumed innocent until the contrary is proven and that they are still in school. He also urged that the fact that they did not have identity cards is not a ground to be relied upon to deny them bond on reasonable terms as they were not flight risks. Analysis And Determination 12.Having listened to the arguments and sentients by both counsel for the parties herein on the application date 24th June, 2026, I have carefully read through the supporting affidavit thereof, the record before the trial court and the pre-trial information reports that were presented before the trial court in consideration of the prayer sought. I find the sole issue for determination being whether or not the Applicants have demonstrated or established a basis to warrant review of the bond terms that were granted by the trial court. 13.The application before court is governed by the provisions of the Constitution, 2010. Under Article 165(6) of the Constitution provides for the High Court power of revision as follows:“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.” 14.What this means practically is that the court can revise the proceedings from magistrate’s courts, tribunals and or other quasi-judicial bodies to correct errors in procedure, check on the legality and propriety of their decisions just so as to ensure fair administration of justice. It is common for a party to call for a review of bond terms or sentence from a Magistrate’s court where it finds the same is high or excessive so that the High Court can reduce it. 15.In the instant case, the Applicants who are students, were charged with the two offences of Arson contrary to Section 332 of the Penal Code and Conspiracy to commit a felony contrary to Section 393 of the Penal Code. The 1st Applicant is aged eighteen (18) years old while the 2nd Applicant is a child in conflict with the law. The trial court granted each one of them bond of Kshs.200,000.00 with one surety, which terms the Applicants find to be excessive and issued without due regard to their respective personal circumstances. 16.Furthermore, as regards the 2nd Applicant, the grievance is that the court failed to take into consideration the provisions of Article 53 of the Constitution and Section 187 of the Children’s Act, 2022 which require the best interest of a child be of paramount importance and require that the detention of a child to be employed as a measure of last resort. 17.Article 49(1)(h) of the Constitution guarantees an arrested person the right to release on reasonable bond or bail terms unless compelling reasons exist. The purpose of such terms is to secure an accused person’s attendance at trial and not to punish an accused person before conviction. 18.In the persuasive case of Mohamood Chute Wote & 2 Others v Republic [2021] eKLR, the Court observed that in determining reasonable bail terms, the starting point is the presumption of innocence and that the purpose of bail and bond is to secure an accused person’s attendance at trial. Further, the Court must consider the nature and seriousness of the offence alongside the circumstances of the person concerned. 19.As per the above persuasive case, bond/bail terms must therefore reflect the nature of the charges, the likelihood of a party’s attendance at trial and the personal circumstances of the person concerned. In effect, the terms which are beyond an accused person’s reach may, amount to a denial of bail or bond. In consideration of the circumstances of this case, each applicant’s circumstances ought to have been considered separately. 20.It is appreciated that the 1st Applicant being eighteen (18) years old, does not fall within the legal definition of a child. However, her age and status as a student alongside the effect of continued detention on her education, remain relevant personal circumstances to be considered in determining reasonable terms of her release on bond or bail. As regards the 2nd Applicant, who is a child in conflict with the law, her continued detention due to inability to raise bond terms granted is not in her best interest as it offends the provisions of Article 53(1) (f) of the Constitution. 21.These considerations, however, do not exempt either Applicant from the criminal process. The Court is required to balance their respective circumstances against the nature of the charges and the need to secure their attendance at trial. 22.In striking that balance, I have considered the seriousness of the charges against the Applicants alongside their personal circumstances and the effect of continued detention on their education. The power to grant bond is judicial discretion as courts are required to follow the Constitution and the law, which means the discretion must be exercised fairly, reasonably and with cogent reasons. The reasonableness and limits of the discretion are guided by the provisions under Article 49(i)(h) of the Constitution, Sections 123 and 124 of the Criminal Procedure Code and in the case where a child in conflict with the law is involved, the provisions of Article 53 of the Constitution. Having considered the nature of charges against the applicants, against other factors, I am not persuaded that the bond of Kshs.200,000.00 that the trial court imposed upon each Applicant is unreasonable as there is nothing placed before this Court to demonstrate that the learned magistrate exercised that discretion on a wrong principle, overlooked a relevant consideration or imposed terms that were plainly unreasonable. The only issue I find the court failed to take into consideration is the best interests of the child as provided for under Article 53 of the Constitution with regard to the 2nd Applicant. 23.That said, the reason the Applicants remain in custody is because they have been unable to satisfy the terms of bond that were imposed. I have taken into account their young age, their status as students, the effect of continued detention upon their education and, specifically, the special constitutional protection accorded to children in relation to the 2nd Applicant. 24.I find it is appropriate to provide an alternative of a cash-bail term. However, I find the proposed cash bail of Kshs.10,000.00 each would be disproportionately low considering the nature and seriousness of the charges the applicants face. Instead, I find a cash bail of Kshs.100,000.00 for 1st Applicant and Kshs.50,000.00 for the 2nd Applicant strikes a fair balance between securing their attendance at trial and avoiding unnecessary continued detention. 25.Accordingly, the application dated 24th June, 2026 partially succeeds to the extent that:a.Each Applicant shall be released on a bond of Kshs. 200,00000 with one surety of a similar amount.b.In the alternative, 1st Applicant shall deposit cash bail of Kshs.100,000.00 while the 2nd Applicant shall deposit a cash bail of Kshs.50,000.00.c.Upon satisfying either condition, the 1st Applicant shall be released unless otherwise lawfully held, while the 2nd Applicant shall be released into the custody of her parent or guardian unless otherwise lawfully held.d.The parent or guardian into whose custody the 2nd Applicant is released shall ensure her attendance before the trial court whenever required.e.The trial court shall accord the matter priority, bearing in mind the age of the Applicants and, in particular, that the 2nd Applicant is a child in conflict with the law.f.There shall be no order as to costs. RULING DELIVERED, DATED AND SIGNED AT MURANG’A THIS 16TH DAY OF JULY, 2026.HON. DORAH CHEPKWONYJUDGEIn the Presence of:Court Assistant – Brian/NellyM/s Kabuba holding brief for Mr. Gatundu Counsel for ApplicantMr. Mwakio Counsel for the State