Muiruri v Republic (Criminal Revision E124 of 2025) [2026] KEHC 10980 (KLR) (Crim) (16 July 2026) (Ruling)

Muiruri v Republic (Criminal Revision E124 of 2025) [2026] KEHC 10980 (KLR) (Crim) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10980 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Revision E124 of 2025 MW Muigai, J July 16, 2026 Between Tabitha Wanja Muiruri Applicant and Republic Respondent Ruling Pleadings 1.The Accused/ Applicant filed revision proceedings against the orders of the subordinate Court in Milimani Chief Magistrate Criminal case No.E902 of 2025 granted on 5/8/2025 by Hon. Magistrate PM Caroline Mugo Nyaguthii. 2.The Applicant prays for orders that :-a)The Court to vacate/or set aside the orders grating the applicant bond of Ksh 1,500,000/= or Cash bail of Ksh 500,000/=b)That the Court grants the applicant lenient bond terms of Ksh 300,000/= or Cash bail of Ksh 50,000/=c)That the orders that the Applicant reports to the Investigating officer on a monthly basis be vacated .d)That the Court orders reinstatement of Ksh 50,000/= initially paid as police bond and forfeited by the subordinate Court on 29/6/2023e)Further grounds that the Court grants orders it deems fit and just 3.The Application is brought on the grounds that the Applicant was arrested on 14/8/2023 and that she was held in police cells for 4 nights 4.The Applicant was released on Cash bail of Ksh 50,000/= on the night on 28/8/2023. 5.That the Investigating Officer never wrote to the Court date on the Cash bail receipt and the Applicant stayed for about a year without communication. That she was informed to come to Court on 6/9/2024 when she attended Court but the Investigating officer was not present. That the Investigating officer did not attend Court and that another Police Officer directed the Applicant to Court No 4 when the Plea Taking Court was Court No.9. 6.That warrants of arrest were issued against the Applicant and were affected after 10 months. The Applicant contends that the delay in effecting warrants was intended to brand her a flight risk. The applicant was arrested on 28/7/2025. That she was arraigned for plea on 29/7/2025 when her application for bond was opposed on ground that she was a flight risk. 7.That the Applicant advocate sought to arrest the decision of the Court and to introduce birth certificates of the Applicant’s children aged 8 and 4 years, but the Trial Magistrate indicated that she had written her ruling and could not have considered the evidence . 8.That the Court found that the Investigating officer’s allegations were not substantiated. The Court then released the Applicant on exorbitant bond of Ksh 1.5 M and Cash bail of Ksh 500.000/= despite its ruling on the lack of evidence. 9.That the matter was placed before Court No. 6 when the Applicant’s advocate sought review of bond terms but the Court directed that bond review would await 2/9/2025 when the Trial Magistrate would resume from leave. 10.The Applicant prays for revision and urges that her children face danger of failing to report to school.That the children also suffer due to continued unfair incarceration of the applicant as a result of exorbitant bond terms. 11.Further that she suffers from hearing and eyesight complications and skin infection and she risks losing her job during incarceration. 12.That the Investigating officers actions were ill motivated and were draconian and unjustifiable.That there was a personal vendetta against the Applicant and the actions were in breach of the Criminal Procedure Code and the National Police Service Act. 13.The Applicant filed her supporting affidavit and supplementary affidavit in response to the replying affidavit application. 14.Her further case is that she attended Court with her husband and his cousin on 6/9/2024 and that the Investigating officer never turned up. 15.That the Police Standing Orders provide that when a person is released on Cash bail and fails to appear, the officer in charge shall make an application to the Magistrate to issue a warrant of arrest . 16.That surrender of Cash bail as unclaimed asset was an infringement of her right to fair administrative action and fair hearing and amount to discrimination. Prosecution’s Replying Affidavit 17.The application is opposed vide the affidavit of no 92072 PC Mbae Murangiri sworn on 1/10/2025.He depones that he was investigating a case of conspiracy to defraud and obtaining by false pretences and stealing by servant. 18.That the matter was reported at Central Police vide OB 119/02/08/2023 and the complainant and it was by the applicant’s employer Teresia Mwaura. That the Applicant was employed as a shop agent and that she allegedly conspired with Wilson Mwati Mathia to steal a consignment of mobile phones valued at Ksh 1,753,608/=. 19.The two accused persons were brought to the station by the employer and members of the public and were booked vide OB No. 90/14/08/2023 No. 149/14/08/2023 and were released on Cash bail vide receipt no 180/7009 and 180/7008 and OB No.164/15/08/2023. 20.That the accused persons were informed of the ODPP’s recommendation to be charged and they requested for time to settle the matter with the Complainant. The Accused failed to honour their commitment and they were informed to avail themselves for plea on 6/9/2024 at Milimani Law Courts.That both accused availed themselves and were directed to the Duty Court but the 2nd accused was missing when the Court commenced causing plea to be deferred to 10/9/2024 . 21.The 2nd accused was also informed of the new date . 22.The Accused person was absent on 10/9/2024 and a warrant of arrest was issued. 23.That the Cash bail receipt No. 1807009 was forwarded to the Regional Cashier Nairobi County Police Headquarters as unclaimed Cash bail as per the annexed letter . 24.That the warrant of arrest was executed on 28/7/2025 and the applicant was placed in custody vide OB No. 58/28/07/2025 and she was arraigned on 30/7/2025. 25.The respondent reiterates that the applicant has not demonstrated any threat to her fundamental rights and freedoms and violation of the objects of Article 244 of the Constitution. 26.The revision was canvassed through written submissions. Supplementary Affidavit 27.In reply to Replying Affidavit by Investigation Officer, the deponent averred that paragraphs 2-5 were irrelevant as would be canvassed during hearing in Trial Court; she vehemently denied she was brought by members of the public and that she took herself to record the statement at the Police Station. The applicant denied that the ODPP after recommending prosecution against them, the Investigating Officer allegedly at their request gave them time to settle the matter with the Complainant. 28.The applicant reiterated that she turned up in Court on 6/9/2024 and was directed to another Court and this led to warrant of arrest to be issued against her. The forfeiture of the Cash bail of Ksh 50,000/- paid at the Police Station as Police Bond was illegally forfeited in contravention of National Police Service Standing Orders & Section 10(10 (r) of National Police Service Act and c/s Art 27 47 & 50 Constitution of Kenya The Accused Written Submissions. 29.The Applicant frames issues for determination as ;whether forfeiture of Cash bail was justified ,the conduct of the investigating officer and whether it is fair for the applicant to continue appearing before the officer in compliance with bond terms and the jurisdiction of the High Court . 30.The Aapplicant submits that the rules on her release on Police Cash bail were contravened and that this the Respondent does not dispute contravening Section 10 (1) ( r ) of the National Police Service Act. 31.That the Police Standing Orders are binding on the Police Officers and the investigating officer acted illegally when he failed to surrender Cash Bail to the Court . 32.Further that the Court ordered forfeiture when the Cash Bail was not before it and when the Applicant had not been afforded an opportunity to be heard. That the order of forfeiture ought to be reversed considering that the Court found that the Investigating Officer never proved allegations against the Applicant. 33.That the Court erred in hastily forfeiting Cash Bail without inquiry into the whereabouts of the accused and without issuing Notice to Show Cause.Without a hearing it was contrary to rules of natural justice 34.That the Court could have issued mention dates after the warrants of arrest to enable the accused give reasons for non-attendance. The Court was also irrational in failing to confirm whether the accused was notified of the plea date particularly when the original Cash Bail receipt was not in Court. 35.That the Investigating Officer’s failure to effect the warrants on time and failing to refund or surrender the Cash Bail to Court was not considered when the Court granted bond terms for her to attend before the investigating office. The applicant submits that the Investigating Officer’s conduct was malicious and intended to persecute the applicant and the condition on bond terms was improper and incorrect . 36.That the Investigating Officer and the Trial Magistrate failed to undertake the proceedings professionally with required efficiency, fairness and reasonable promptness. Respondent’s Submissions. 37.The prosecution filed submissions dated 4/5/2026 and submits that compelling reasons for review of bond terms have not been demonstrated. 38.That the applicant’s conduct demonstrated that she did not deserve lenient bond terms. That the Court acted judiciously and within the law and issued strict bond terms which were to ensure the accused attendance .The Court has discretion to issue warrant of arrest and cancel bond terms when the accused fails to attend Court and matter mentioned severally. 39.The prayer for revision of the condition that the applicant appears before the investigating officer is not contested. The applicant had submitted that the condition can be abused and used to cancel bond terms. Analysis & Determination 40.I have considered the pleadings, oral and written submissions by parties with regard to the instant application that the Applicant seeks review/revision of Trial Court orders vide Judgment/Ruling of 5/8/2025 on grounds detailed by Applicant Supporting and Supplementary Affidavits and strenuously opposed by ODPP/Prosecution/State. Jurisdiction of the Court 41.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. 42.In the absence of the Trial Court file, I have perused the Ruling of Trial Court of 5/8/2025 on Bail & Bond for the Accused person. The Ruling reads in parts;‘The Accused person was granted Police Cash Bail and directed to appear in Court for plea on 6/9/2024, the Accused failed to appear in Court and warrants of arrest were issued. The warrants were extended severally and on 29/7/2025 the Accused person was brought by the Investigation Officer who executed the warrant. After taking plea Counsel for the Applicant Mr Kahuthu told Court the Accused person had been hiding since last year and therefore objected to grant of Bail to the Accused person.The Application was seconded by the Prosecution who notified the Court the Accused person had been at large since November 2024 and it took efforts of the Complainant to have her arrested. The Prosecution maintained she was a flight risk and should not be granted Bail and bondThe Accused person told the Court that she came to Court but was informed there was no such case and since she was not in communication with the Complainant she did not know what was happening.’’ 43.On these grounds outlined by the parties Prosecution & Defense the Trial Court was moved by the Parties not to grant Bail and bond to Accused person as she was a flight risk and after grant of Police Cash Bail she never came to Court until she was arrested by I/O at behest of Complainant and brought to Court. I find the Trial Court exercised judicial discretion and based on and outlined the law of Bail and Bond and granted the Accused person /Applicant stringent Bail and bond terms. I find no incorrectness, illegality or impropriety on the conduct of Trial Court proceedings of Bail and Bond. Revision of Bail & Bond Terms 44.Section 123 of the Criminal Procedure Code as read with Article 49(h) of the Constitution also provide for the right to bond which can be issued at any time of the Trial and reviewed by the Court when circumstances change or there are new developments. 45.The Bail and Bond Policy Guidelines provide at paragraph 4.26 (h) and (d) provide that:-“(h)In addition to the factors stipulated in Paragraph 4.9 above, the Court should consider, as appropriate, the following additional factors in deciding whether to grant an accused person Bail….(d)Change of circumstances during the trial.” 46.The Applicant in this Court raised matters/issues not raised before the Trial Court but in this Court seeking revision of the Bond and Bail Terms. These are that the Applicant is mother to 2 children aged 8 & 4 years respectively; she attached copies of photographs school fees structure and birth certificates of the children and sought review of Bail and bond terms. The Applicant deposed that she suffers hearing skin infection and eye sight infection and she is deprived of sustaining her newfound job due to absenteeism. The Applicant submitted that the terms are exorbitant and high Bail bond terms and alleged that it was erroneous that the Applicant was/is a flight risk and the Trial Court made incorrect and improper verdict especially in light of the fact that the Accused person came to Court and she was not aware of plea taking date and she was not aware of the subsequent mention dates and effecting of warrants of arrest. 47.The Applicant deposed that through Counsel she tried to pursue Bail and bond review before the Duty Court and was informed to await the Trial Court to resume from leave. The Applicant sought to arrest the delivery of Trial Court Ruling of 5/8/2025 to include matters regarding the children, but it was ready and was read out by the Trial Court. 48.Article 49(1)(h) of the Constitution is the principal textual source for the right to Bail/bond: 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.”Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015 at p. 25 provides;The prosecution shall satisfy the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of Bail.The Prosecution must, therefore, state the reasons that in its view should persuade the Court to deny the accused person Bail, including the following:-That the accused person is likely to fail to attend Court proceedings; in this instant the Prosecution throughthe Investigation Officer Prosecution explained circumstances of the Applicant’s non attendance to Court for plea-taking that culminated to execution of warrant of arrest and consider flight risk hence stringent Bail and bond measures. 49.The ODPP submitted that with reference to the case of Mbogo vs Shah & Anor (1968) EA 93 the Court should not interfere with Trial Court’s discretion unless the decision is clearly wrong or the Trial Court misdirected itself by taking in matters it should not have considered or vice versa not considering crucial matters. None of these are depicted in the Trial Court’s decision which is well founded based on evidence presented as elucidated above. 50.Ideally, review of Bail and bond terms is preferably placed before the Trial Court which has primary jurisdiction to review bond terms before the High Court jurisdictioncan be invoked. The applicant has told Court that the Application for bond review could not be heard before the Trial Court which was on leave. 51.I find that this Court has jurisdiction to look at the subordinate Court orders under Section 362 of the Criminal Procedure Code and that there is no prejudice if it proceeds to consider bond review. 52.However, in light of new developments, unfolding events and for change of circumstances as outlined /pleaded in this Court and not in Trial Court, the matter of underage children deprived of maternal care and that the Accused is presumed innocent until found guilty, there is need to balance the rights of Accused person and Complainant victim and public/society at large in compliance with the Constitution without jeopardizing the position of the Trial Court that the Applicant is a flight risk. Revision of Order of Forfeiture of Police Bond 53.The applicant and her co accused were charged with the offence of Conspiracy to defraud contrary to Section 317 and Stealing contrary to Section 281 of the Penal Code. The Trial Court in the impugned ruling indicated that the applicant was to appear on 6/9/2024 and that she was granted Cash Bail. That plea was not taken until a year. 54.The Trial Court considered the submissions of parties and that the complainant told Court that the accused had gone missing for a year while the Prosecution also submitted that she was at large since 2024. Further that it took the complainant’s efforts to arrest the accused. The Court found that she came under warrants of arrest and that she had been away for 1 year. The Court also found that the allegations that the accused had been informed or aware of the plea date and that there was some communication by the IO was not substantiated. 55.It is not disputed that the Accused person was arrested and detained in Police while investigations were underway. After 4 days the Accused person was granted Police Cash Bail of Ksh 50,000/- and set free on 28/8/2023, to attend Court for plea. In her pleadings on the one hand she deposed that the Police Cash Bail receipt had no date of Court attendance as stated in Paragraph 3 of Supporting Affidavit . On the other hand she was to appear in Court for plea but went to the wrong Court. 56.After 1 year I/O informed the Applicant to attend Court she was told to attend Court on 6/9/2024 in Court 4 instead of Court 19 where Duty Court was taking plea and thereafter there were various mentions (10 times) before CMs Courts until she was arrested on 25/7/2025 and presented to Court and she took plea and Prosecution and Victim Lawyer opposed Bail and bond and declared her a flight risk.Further that it took the Complainant’s efforts to arrest the accused. 55.With respect, the Applicant on being granted Police Cash Bail of Ksh 50,000/- and was released she ought to have gone back to the same Police Station to enquire if and when she was to attend Court and not wait to be reached by the Investigation Officer. 56.Secondly, if as alleged the Applicant was within CM’s Court precincts on 6/9/2024 as alleged and another Officer directed them to the wrong Court, surely from Sept 2024- 28/7/2025, the Applicant would have individually or with an Advocate gone to Court enquired as to her case orally or in writing in or to the Court Registry, Duty Court or CM.s Court itself or through her Advocate wrote to the Court officially inquiring on her matter. Better still, go back to the Police Station where she was released and report that she went to Court and was in the wrong Court and her matter was not mentioned. If she did not find or did not want to talk to I/O speak to the OCS. I find that the Applicant did not offer plausible explanation as to her disappearance from date of release to date of arrest under warrant of arrest. Therefore, the Police Station rightfully withheld the Police bond and did not deposit in Magistrate’s Court as she was at large. The prayer for reinstatement of Police Cash Bail amount of Ksh 50,000/= is hereby denied. Court Order of Accused Person to Report to I/O on Attendance. 57.On the order on the Accused’s attendance before the Investigation Officer; I have considered the charges preferred the amount involved in the offence Ksh 1,753,608/= and the Replying affidavit filed in this Court.The Applicant‘s case is that the Investigating Officer’s laxity and delay in executing the warrants was ill intended such that by the time she was arrested and arraigned there was ground that she was a flight risk. She has also attached copy of electronic case tracking system of various dates in the matter However, she did not inform the Trial Court whether she went back to the Police Station or went to the Court Registry after the Plea taking date when she allegedly went to the wrong Court. 57.It seems that the Applicant went underground for the period until she was arrested with the help of the public, Complainant and I/O.There was a likelihood that the Applicant would abscond Court during Trial. 58.I find that these facts allowed the Court to issue stringent bond terms for accountability and as an assurance of her Court attendance. The Prosecution and Complainant’s Counsel objected to grant of Bail to the Applicant and therefore stringent measures included reporting to I/O. Due to apparent bad blood between the Applicant towards the I/O and the fact that ODPP did not object to withdrawal of this condition; this Court will withdraw the same. Whether the Bond or Cash Bail Can be Reviewed Down Wards 59.The revision Court determines whether there was irregularity illegality or impropriety in the orders of the subordinate Court. The applicant and her co accused were charged with the offence of Conspiracy to defraud contrary to Section 317 and Stealing contrary to Section 281 of the Penal Code. The Trial Court in the impugned ruling indicated that the applicant was to appear on 6/9/2024 and that she was granted Cash Bail. That plea was not taken until a year. 60.The Court considered the submissions of parties and that the complainant told Court that the accused had gone missing for a year while the prosecution also submitted that she was at large since 2024.Further that it took the complainant’s efforts to arrest the accused. the Court found that she came under warrants of arrest and that she had been away for 1 year . 61.the Court also found that the allegations that the accused had been informed or aware of the plea date and that there was some communication by the IO was not substantiated. Bond was allowed in the terms of Ksh 1.5 Million with surety or Ksh 500,000/= Cash Bail. 62.I find that these facts allowed the Court to issue stringent bond terms for accountability and as an assurance of her Court attendance, taking into account the previous circumstances and antecedents. 63.It is trite that the main consideration is whether the accused if released will turn up for trial and whether circumstances exist that create doubt of Accused persons attendance. 64.In Republic -vs- William Mwangi Wa Mwangi [2014] eKLR Hon.Muriithi J held :“It is trite that the cardinal principle which the Court should consider in deciding whether to grant Bail is whether the accused will turn up for his trial and whether there are substantial grounds to believe that he is likely to abscond if released on Bail.” 65.Further Courts have held that risk of absconding is more apparent where charges are more serious. In Criminal Application No. 319 of 2002 Priscilla Jemutai Kolongei vs. Republic (unreported) Hon Mbogholi MsaghaJ at page 3“However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive.” 66.In Kirit Bhangwanda Kanabar v DPP & another , Misc. Crim. Appl. No. 29 of 2018, (India) the Court held that :“Given the framework, the automatic trigger on the Cash Bail being based on a particular percentage or ratio of the alleged amount in the offence charged to was a fallacy not attributable to any rationale or legal craft. In other words, exercise of discretion in determining Bail terms should apply the fundamental rights to ensure fairness, access, justice, consistency, predictability, speedy trials and due process of the law. That was because the framers of the Constitution forged a new path under article 49 (h) which mirrored the rule against the use of excessive Bail. Setting Bail amounts at ratios that were unaffordable contravened equal protection and due process rights of an accused person” 67.The accused benefits from presumption of innocence and the Court’s obligation is to consider ways to facilitate the Constitutional right to bond.The Trial Court did so based on facts presented before her by parties/Counsel culminating to Ruling on Bail and bond despite the fact grant of Bail and bond was opposed. I find no irregularity illegality or impropriety. The Trial Court exercised judicial discretion based on the circumstances presented before the Court. The Court had taken into account new development. 68.The Accused person’s personal circumstances have been considered particularly that she is a parent and care giver of children tender years which are new developments not presented to the Trial Court. 69.The Accused person’s sickness has not been proved before this Court , however, the allegation that the amount is exorbitant and high and that she has been in remand and further consideration of the accused personal circumstances under the law is sufficient ground for downward review of bond. 70.Disposition1.The Application for revision of the Trial Court’s Ruling of 5/8/2025 is partly dismissed and partly upheld.2.The Applicant’s request for refund reinstatement of forfeited Police Cash Bail is denied due to reasons above.3.The Applicant’s request to withdraw the order to report to I/O monthly attendance is granted.4.The Applicant’s request for variation of Bail and bond downwards is considered taking into account new circumstances but taking into account the preferred charges, the Trial Court proceedings and Ruling and therefore bond and Bail terms are varied to Ksh 800,000/- with 2 sureties or Cash Bail of Ksh 400,000/- with contact person (s) with valid ID or Payslip or Chief’s letter.5.The Accused person to abide by Bail/bond terms attend all Court sessions as required by Trial Court 6.The Accused person should not leave jurisdiction of the Court and deposit passport in Court 7.The Accused person will not interfere with witnesses or evidence8.In default of the conditions Bail/bond shall be canceled forthwith RULING DELIVERED SIGNED DATED IN OPEN COURT CRIMINAL DIVISION MILIMANI ON 16/7/2026 VIRTUALLY & PHYSICALLY.M.W. MUIGAIJUDGE