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High CourtAllowedMiscellaneous Criminal Application (bail revision) arising from Criminal Case No. 158 of 2019 and Criminal Case No. 74 of 2019

Hillary Wachira Wanjiku v Republic

High Court of Kenya
24 June 2020
1,961 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Unproven allegations of escape or lack of address cannot legally justify denying someone their constitutional right to bail in Kenya.

What this practically means

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Executive summary

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Hillary Wachira Wanjiku, charged in two criminal cases before the Chief Magistrate's Court at JKIA Nairobi (Criminal Case No. 158 of 2019 and Criminal Case No. 74 of 2019), applied to the High Court to revise the trial courts' decisions denying him bail pending trial. Both trial courts had found him a flight risk based principally on the prosecution's oral assertion that he had escaped from custody, even though one trial court noted the investigating officer had not sworn an affidavit explaining the circumstances and described the escape as 'mysterious'. The Applicant argued there was no evidence of flight risk or lack of fixed abode, and that he was treated discriminatorily compared to his co-accused. The State, while conceding bail is a constitutional right, maintained there were compelling reasons, citing the alleged abscondment and lack of fixed abode, and sought stringent conditions if bail were granted. L. Kimaru, J. confirmed the High Court's revisionary jurisdiction under Article 165(6) & (7) of the Constitution read with Section 364 of the Criminal Procedure Code. Applying Grace Kananu Namulo v Republic and the Zimbabwean authority S. v. Nyaruviro, the court held that bail should be granted unless irrefutable compelling reasons exist, and that an unproved, unsubstantiated allegation of escape from custody - a serious offence requiring proof of date, place and circumstances - cannot justify denial of bail. The allegation of no fixed abode was to be addressed through bail terms. The court set aside both trial courts' decisions and granted bail in each case on bond of Kshs. 1 million with two sureties (one a close relative), or cash bail of Kshs. 500,000/- with two sureties, with conditions on attendance, non-contact with witnesses and monthly court appearances after the COVID-19 curfew was lifted.

Key legal issues

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01

Whether unproved oral assertions by the prosecution constitute compelling reasons to deny bail

Holding

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.

Reasoning

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.

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02

Whether the High Court has jurisdiction to revise bail decisions of magistrates' courts

Holding

Yes - Article 165(6) & (7) of the Constitution read with Section 364 of the Criminal Procedure Code confers revisionary jurisdiction over magistrates' courts' decisions.

Reasoning

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.

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03

Whether the allegation that the Applicant had no fixed abode justified denial of bail

Holding

No - any risk arising from lack of a fixed abode can be addressed by bail terms rather than denial of bail.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.