https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13107

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL MISCELLANEOUS APPLICATION NO. E019 OF 2026** **DK RONO, J** **21 JULY 2026** **BETWEEN** **STEVE BIKO GAKURE GICHARA.............................................................APPLICANT** **AND** **REPUBLIC.....................................................................................................RESPONDENT** **RULING** **1.** Before this Court is the Notice of Motion dated 8th July 2026 brought pursuant to Sections 81(1)(a) and 81(1)(e)(ii) of the Criminal Procedure Code, Cap. 75 Laws of Kenya, and Articles 49 and 50 of the Constitution. The Applicant seeks three principal orders: firstly, that Meru Chief Magistrate's Criminal Case No. E854 of 2026 be transferred to another court of competent jurisdiction outside Meru Law Courts; secondly, that the plea-taking before the subordinate court be stayed pending the determination of this application; and thirdly, that this Court reviews the bond terms imposed by the trial court. **2.** The application is supported by the Applicant's affidavit sworn on 8th July 2026. The gravamen of his complaint is that the complainant is employed as a Court Assistant at the Meru Law Courts. According to the Applicant, the complainant's position within the Judiciary gives rise to a reasonable apprehension that he may not receive a fair and impartial trial before that station. He further contends that the bond terms of Kshs.500,000 with one surety or cash bail of Kshs.300,000 are excessive, beyond his financial means and have resulted in his continued incarceration. **3.** The Respondent opposes the application through Grounds of Opposition dated 8th July 2026. It is contended that the application is founded upon speculation rather than evidence; that no factual basis has been laid to demonstrate actual or apparent bias on the part of the trial court; that the mere fact that the complainant is an employee of the Judiciary cannot justify the transfer of criminal proceedings; and that the issue of bond remains within the primary jurisdiction of the trial court unless exceptional circumstances warrant intervention by the High Court. **Issues for Determination** **4.** Having considered the pleadings and the rival arguments, the Court is of the view that the application raises two issues for determination 1. *Whether the Applicant has established sufficient grounds for the transfer of Meru Chief Magistrate's Criminal Case No. E854 of 2026 under Section 81 of the Criminal Procedure Code.* 2. *Whether this Court should interfere with or review the bond terms imposed by the subordinate court.* ***Whether the Criminal Case Should be Transferred*** **5.** The jurisdiction of the High Court to transfer criminal proceedings is conferred by Section 81 of the Criminal Procedure Code. Under that provision, the Court may transfer a criminal case where it appears that a fair and impartial trial cannot be had before the court in which the proceedings are pending, where a question of law of unusual difficulty is likely to arise, where such transfer would tend to the general convenience of the parties or witnesses, or where such an order is otherwise expedient for the ends of justice. The jurisdiction is discretionary and is intended to secure the proper administration of justice rather than the convenience or subjective preferences of litigants. **6.** The discretion under Section 81 is, however, exceptional. It is not exercised as a matter of course merely because an accused person expresses dissatisfaction with the forum before which he is to be tried. Rather, the jurisdiction exists to safeguard the constitutional guarantee of a fair hearing where objective circumstances demonstrate that justice cannot reasonably be expected to be done or be seen to be done before the court seized of the matter. Consequently, the burden rests upon the applicant to place before the Court cogent material capable of displacing the presumption that judicial officers will faithfully discharge their constitutional mandate. **7.** The constitutional underpinning of that jurisdiction is found principally in Articles 25(c), 50(1) and 160(1) of the Constitution. Article 25(c) declares the right to a fair trial to be non-derogable, while Article 50(1) guarantees every person the right to have any dispute determined by an independent and impartial court established by law. Equally significant is Article 160(1), which safeguards judicial independence by providing that, in the exercise of judicial authority, the Judiciary shall not be subject to the control or direction of any person or authority. Those provisions collectively establish a constitutional presumption that judicial officers administer justice impartially, independently and without fear, favour, bias or prejudice. **8.** It follows that an applicant seeking the transfer of criminal proceedings bears the burden of rebutting that constitutional presumption through credible, objective and verifiable evidence. Mere apprehension, suspicion or conjecture, however genuinely held, is insufficient. The applicable test is an objective one. The question is whether a fair-minded and informed observer, having considered all the relevant facts, would conclude that there exists a real possibility or reasonable apprehension of bias such that justice may not be seen to be done. **9**. In ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others* [2013] eKLR,** the Supreme Court underscored that judicial impartiality is presumed and that allegations of apparent bias must be founded upon objective facts rather than subjective perceptions. Likewise, in ***Kalpana H. Rawal v Judicial Service Commission & 2 Others* [2016] eKLR,** the Supreme Court reiterated that the test for apparent bias is whether a reasonable and informed observer would apprehend that the decision-maker might not bring an impartial mind to bear upon the matter. **10.** The same approach has been adopted in applications for transfer under Section 81 of the Criminal Procedure Code. In ***Joseph Mutua Klungu v Daniel Musyoki Musiu & 4 Others* [2012] eKLR,** the Court emphasized that the discretion to transfer criminal proceedings must be exercised judicially and only upon tangible evidence demonstrating that a fair trial cannot reasonably be had before the trial court. Earlier, in ***Shilenje v Republic* [1980] KLR 132**, it was held that transfer of criminal proceedings is an exceptional remedy reserved for circumstances where the interests of justice clearly require such intervention. **11.** Applying those principles to the present application, the Court finds that the Applicant's case rests entirely upon the fact that the complainant is employed as a Court Assistant at the Meru Law Courts. It is contended that by reason of that employment the complainant enjoys institutional influence capable of compromising the impartiality of the trial court. **12.** Respectfully, that contention is unsupported by any evidential foundation. The Applicant has not pointed to any conduct on the part of the trial magistrate suggesting predisposition, hostility or partiality. No material has been placed before the Court demonstrating that the complainant has attempted to influence the judicial officer before whom the matter is pending or that any judicial officer has acted in a manner inconsistent with the constitutional obligation of impartiality. Indeed, it is common ground that the Applicant has not even taken plea before the subordinate court. **13.** The Court cannot infer bias merely from the complainant's employment within the Judiciary. Judicial officers derive their authority directly from the Constitution and are bound by their oath of office to administer justice independently and impartially. To hold that every matter involving a judicial employee must automatically be transferred to another station would amount to an unwarranted erosion of public confidence in the institutional independence of the Judiciary and would be fundamentally inconsistent with Articles 159 and 160 of the Constitution. **14.** The law does not presume that judicial officers will abandon their constitutional obligations because one of the litigants happens to be employed by the Judiciary. Such a proposition would undermine, rather than enhance, public confidence in the administration of justice. Courts must be vigilant against actual or apparent bias, but they must equally guard against unfounded allegations that erode confidence in judicial independence without any objective basis. **15.** In the premises, the Court is not satisfied that the Applicant has demonstrated exceptional circumstances warranting the exercise of this Court's discretionary jurisdiction under Section 81 of the Criminal Procedure Code. The apprehension advanced by the Applicant remains speculative and falls short of the legal threshold required for the transfer of criminal proceedings. ***(b) Whether the Bond Terms Should Be Reviewed*** **16.** The Applicant further prays that this Court reviews the bond terms imposed by the subordinate court. His complaint is that the bond of Kshs.500,000 with one surety or, in the alternative, cash bail of Kshs.300,000 is beyond his financial means and has resulted in his continued detention pending plea. **17.** The constitutional right to bail is guaranteed under Article 49(1)(h) of the Constitution, which provides that an arrested person has 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."* The constitutional emphasis is therefore on the reasonableness of the conditions imposed. The purpose of bail is not punitive, nor is it intended to secure the pre-trial detention of an accused person. Rather, its primary objective is to secure the attendance of the accused throughout the criminal proceedings while respecting the constitutional presumption of innocence. **18.** The Supreme Court in ***Republic v Ahmad Abolfathi Mohammed & Another* [2018] eKLR** observed that although the right to bail is constitutionally protected, it is not absolute. In determining appropriate bail terms, a court must strike a delicate balance between safeguarding the liberty of the accused and ensuring the proper administration of criminal justice. Likewise, in ***Taiko Kitende Muinya v Republic* [2010] eKLR**, the High Court emphasized that the principal consideration in fixing bail is whether the terms imposed are reasonably sufficient to secure the attendance of the accused at trial. **19.** These constitutional principles are reflected in the Judiciary Bail and Bond Policy Guidelines, 2015, which require courts to impose bond terms that are reasonable, proportionate and no more onerous than is necessary to secure an accused person's attendance at trial. In determining appropriate terms, the court is required to consider, among other factors, the nature and seriousness of the offence, the strength of the prosecution case, the accused person's character and antecedents, the likelihood of attending trial, the need to protect victims and witnesses, and the interests of justice generally. **20.** It is therefore not sufficient for an applicant merely to state that he is unable to raise the bond imposed. While an accused person's financial circumstances are a relevant consideration, inability to meet the terms set by the court does not, without more, establish that those terms are unreasonable, excessive or unconstitutional. The Court must distinguish between bond that is objectively excessive and bond that is simply beyond the financial ability of a particular accused person. **21.** The discretion to determine appropriate bond terms is vested primarily in the trial court, which has the advantage of considering the facts of the case, the nature of the charge, the circumstances of the accused and the views of the prosecution at the earliest stage of the proceedings. Consequently, the High Court will not lightly interfere with the exercise of that discretion. Intervention is justified only where it is demonstrated that the subordinate court acted on wrong principles, took into account irrelevant considerations, failed to consider relevant matters, or imposed conditions that are manifestly excessive or amount to a denial of the constitutional right to bail. **22.** That principle is well established. In ***Ng'ang'a v Republic* [1985] KLR 451,** the Court held that an appellate or supervisory court should be slow to interfere with the exercise of judicial discretion unless it is shown that the lower court misdirected itself in law or principle, considered irrelevant matters, failed to consider relevant matters, or reached a decision that is plainly unjust. **23.** The Applicant has not demonstrated that the subordinate court acted upon any erroneous principle in fixing the bond terms. Beyond asserting that the amount is beyond his financial means, he has placed no material before this Court to show that the trial court ignored relevant considerations, relied upon irrelevant matters, or imposed terms that are so excessive as to amount to a constructive denial of bail. In the absence of such evidence, this Court cannot properly interfere with the exercise of the trial court's discretion. **24.** It is equally significant that the criminal proceedings have not progressed beyond the pre-plea stage. The trial court retains continuing jurisdiction to review, vary or reconsider bond terms should circumstances materially change or should further information become available. The Applicant is therefore not without a remedy, as he remains at liberty to move the subordinate court for a review of the bond terms upon demonstrating sufficient cause. **Disposition** **25.** Having carefully considered the Notice of Motion dated 8th July 2026, the supporting affidavit, the Grounds of Opposition, the applicable constitutional and statutory provisions, and the authorities cited, the Court is not persuaded that the Applicant has established a basis for the exercise of its discretion either to transfer Meru Chief Magistrate's Criminal Case No. E854 of 2026 or to interfere with the bond terms imposed by the subordinate court. **26.** The Applicant has failed to demonstrate, by objective and credible evidence, that there exists a real likelihood or reasonable apprehension that he will not receive a fair and impartial trial before the Chief Magistrate's Court at Meru. His apprehension is founded solely upon the complainant's employment within the Judiciary, a fact which, without more, is insufficient to rebut the constitutional presumption of judicial independence and impartiality guaranteed under Articles 50(1), 159 and 160(1) of the Constitution. **27.** Similarly, the Applicant has not established that the bond terms imposed by the trial court were fixed upon wrong principles, are manifestly excessive, or amount to an infringement of the constitutional right guaranteed under Article 49(1)(h) of the Constitution. There is therefore no lawful basis upon which this Court may interfere with the discretion properly vested in the subordinate court. **28.** Consequently, the Notice of Motion dated 8th July 2026 is devoid of merit and is hereby dismissed. **29.** For the avoidance of doubt, the orders of this Court are as follows; 1. The prayer for the transfer of Meru Chief Magistrate's Criminal Case No. E854 of 2026 to another court of competent jurisdiction is declined. 2. The prayer for review of the bond terms is declined, without prejudice to the Applicant's liberty to apply for review before the trial court should circumstances warrant such an application. 3. Meru Chief Magistrate's Criminal Case No. E854 of 2026 shall proceed before the trial court in the ordinary course. **DATED, SIGNED AND DELIVERED AT MERU THIS 21st DAY OF JULY 2026.** **DK RONO** **JUDGE**