https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9211

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL REVISION NO. E041 OF 2026** STANLEY FENTO MUKANGAI……………….……………….……APPLICANT VERSUS REPUBLIC……………………………………………………...…..RESPONDENT **RULING** 1. Before the trial court, the applicant faces a charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006. He pleaded not guilty, but the trial court declined to admit him to bail. 2. By an application dated 30th March 2026, the applicant seeks revision of the trial court's order denying him bail. He deposes that he is a Kenyan citizen with a fixed place of residence. He contends that he is not a flight risk, has no intention of absconding, and will not interfere with witnesses or investigations. 3. He further states that he fully cooperated with the investigating officers during his arrest, did not evade arrest or obstruct the course of justice, and is willing to comply with any bond terms the Court may impose. 4. The applicant relies on Article 49(1)(h) and Article 50(2)(a) of the Constitution, maintaining that he is presumed innocent until proven guilty and that the prosecution has failed to demonstrate compelling reasons to justify the continued denial of bail. 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 burden lies on the prosecution to establish the existence of compelling reasons. 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 states: **"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 a charge of defilement. While the nature of the charges alone cannot constitute compelling reasons to deny bail, they remain relevant considerations when assessed alongside the circumstances of the case. 2. The record shows that, before determining the question of bail, the trial court directed that a pre-bail report be prepared. The report, which forms part of the record, was unfavourable to the applicant. It disclosed concerns raised by the complainant and the local administration regarding the applicant's release, including the likelihood of interference with the complainant. The probation officer therefore did not recommend his release on bail. 3. In declining bail, the learned trial magistrate expressly considered the contents and recommendations of the pre-bail report. The court found that the concerns raised therein constituted compelling reasons to deny the applicant bail at that stage of the proceedings. The decision was therefore not reached arbitrarily but was informed by material properly placed before the court. 4. Although the applicant maintains that he cooperated with the police during his arrest, is not a flight risk, and is willing to comply with any bond terms imposed, those assertions did not adequately address the concerns identified in the pre-bail report. The constitutional right to bail under Article 49(1)(h) is not absolute and may be limited where compelling reasons are established. 5. Upon independently reviewing the record, I am satisfied that the learned trial magistrate properly appreciated the applicable constitutional principles and exercised her discretion judiciously. The court considered both the applicant's right to liberty and the unfavourable pre-bail report before concluding that compelling reasons existed to deny bail. I find no indication that the court misdirected itself, took into account irrelevant considerations, or failed to consider relevant ones. 6. Consequently, no illegality, impropriety, material irregularity or error of principle has been demonstrated to warrant this Court's intervention in exercise of its revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code. The application for revision is therefore devoid of merit and is hereby dismissed. The orders of the trial court declining to admit the applicant to bail are upheld. Orders accordingly. **Ruling dated and delivered virtually this 29th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Applicant Present Mr. Mutuma for the Respondent Karimi Court Assistant.