Hillary Wachira Wanjiku v Republic
The bottom line
#Unproven allegations of escape or lack of address cannot legally justify denying someone their constitutional right to bail in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether unproved oral assertions by the prosecution constitute compelling reasons to deny bail
No - the assertion that the Applicant escaped from custody was a mere allegation unsupported by affidavit or evidence and could not found a finding of flight risk.
The trial courts denied bail solely on the prosecution's oral assertion that the Applicant had escaped from custody. No affidavit by the investigating officers set out the circumstances, date or place of the alleged escape, and one trial court itself noted the escape was 'mysterious'. The Applicant's assertion that he was unaware he was required in court went unchallenged. Without proof, a compelling reason was not established.
Whether the High Court has jurisdiction to revise bail decisions of magistrates' courts
Yes - Article 165(6) & (7) of the Constitution read with Section 364 of the Criminal Procedure Code confers revisionary jurisdiction over magistrates' courts' decisions.
The court noted that the jurisdiction to revise any order issued by a trial court was not contested, and cited Article 165(6) & (7) of the Constitution together with Section 364 of the Criminal Procedure Code as the source of that power to review any decision made by a magistrate's court.
Whether the allegation that the Applicant had no fixed abode justified denial of bail
No - any risk arising from lack of a fixed abode can be addressed by bail terms rather than denial of bail.
The prosecution relied on the pre-bail report to assert the Applicant had no fixed abode. The court held that this concern would be resolved by the terms imposed on granting bail, including monthly appearance requirements and sureties, rather than by denying the constitutional right to bail outright.
Legal principles established
#- Courts should lean towards granting accused persons bail pending trial unless irrefutable compelling reasons are placed before the court by the prosecution.
- An allegation that an accused escaped from custody cannot be established orally from the bar; it requires actual proof of the circumstances, date and place of the alleged escape.
Court orders
#- 1.The two trial court decisions denying bail pending trial are set aside and substituted with an order granting bail pending trial in both cases
- 2.The Applicant shall post bond in each case of Kshs. 1 million with two sureties of the same amount, one of whom must be a close relative
- 3.If unable to post bond, the Applicant shall deposit cash bail of Kshs. 500,000/- in each case with two sureties who shall each execute a bond, one of whom must be a close relative
- 4.The Applicant shall attend court on scheduled trial dates without fail and shall not be in contact with prosecution witnesses prior to the hearing
- 5.The Applicant shall appear before the trial court once every month (after the COVID-19 curfew has been lifted) until conclusion of the trial or further orders
- On appeal from
- Chief Magistrate's Court at JKIA Nairobi
- Criminal Case No. 158 of 2019 and Criminal Case No. 74 of 2019
- Jurisdiction invoked
- Article 165(6) & (7) of the Constitution read with Section 364 of the Criminal Procedure Code (revisionary jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hillary Wachira Wanjiku v Republic", Case Analysis (2020). Miscellaneous Criminal Application (bail revision) arising from Criminal Case No. 158 of 2019 and Criminal Case No. 74 of 2019. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.