Republic v Wanjiku & another (Criminal Case E901 of 2025) [2025] KEMC 140 (KLR)

Magistrates' Court

12 June 2025

ANA.P. Ndege

700 words in judgment

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The bottom line

Once someone is charged in court, only a judge or magistrate can grant bail — police bail after that is illegal and void.

What this practically means

Executive summary

This ruling by Senior Principal Magistrate A.P. Ndege at Nakuru addresses the legality of police bail granted after arraignment. The accused persons were arrested on 28 April 2025 and charged with stealing contrary to Section 268(1) as read with Section 275 of the Penal Code. The charges were presented before the court on 30 April 2025, but the plea was deferred to 2 May 2025. On 1 May 2025, police at Bondeni Police Station released the 2nd accused, Isaac Maina Njoki, on cash bail of Kshs. 2,000 without judicial authorization. He failed to appear in court on 2 May 2025 and subsequently absconded, prompting the police to inform the court on 23 May 2025 that they had unlawfully released him. The court held that a trial commences upon filing of a charge sheet, so once the charges were presented on 30 April 2025 the court had assumed jurisdiction and the police lacked any concurrent power to grant bail. Relying on Article 49(1)(h) of the Constitution, the court affirmed that bail is a constitutional right but must be granted within statutory limits and, post-arraignment, must be judicially determined. The court found the release procedurally irregular, the cash bail improperly issued, the 2nd accused a flight risk, the failure to report the bail decision a violation of Section 37 CPC, and declared that the police became functus officio once the court's jurisdiction commenced. The court issued a warrant of arrest against the 2nd accused, ordered the OCS Bondeni to remit the Kshs. 2,000 for forfeiture within 7 days and file an affidavit within 14 days explaining the illegal bail, and directed that the ruling be forwarded to the Inspector General of Police for administrative action.

Key legal issues

Whether police have concurrent jurisdiction to grant bail after arraignment

Holding

The police lacked jurisdiction to grant bail post-arraignment; the release was procedurally irregular and legally void.

Reasoning

A trial commences upon filing of a charge sheet in a subordinate court. The charges against both accused were presented on 30/04/2025, when the court assumed jurisdiction. Thereafter bail could only be judicially determined. Releasing the 2nd accused on police bail of Kshs. 2,000 on 01/05/2025, after arraignment, overstepped police authority and circumvented judicial oversight, amounting to interference with the administration of justice.

p. 2

Compliance with Section 37 CPC on reporting bail decisions

Holding

Failure to report the bail decision violated Section 37 of the Criminal Procedure Code, rendering the police discretion void.

Reasoning

The court found that the police failed to report the bail decision as required by Section 37 CPC, and that upon the court's jurisdiction commencing, the police became functus officio, voiding the bail. The court relied on Mwangi v Republic [2024] KEHC 9453 (KLR) on bail evaluation principles and Republic v OCS, Nairobi Central Police Station [2020] eKLR on functus officio.

p. 2

Bail as a constitutional right under Article 49(1)(h)

Holding

The 2nd accused was entitled to bail, but the right must be exercised within procedural boundaries and, post-arraignment, only with judicial sanction.

Reasoning

Article 49(1)(h) entitles an arrested person to release on bail unless compelling reasons justify denial. The 2nd accused was entitled to bail rights, but once charges were formally presented in court, the procedural framework required judicial determination of bail. Police bail after arraignment without judicial approval was an overstepping of authority.

p. 2

Legal principles established

Once an accused person has been formally charged before a court and the trial has commenced, the police lack jurisdiction to release the accused on police bail; post-arraignment bail must be judicially sanctioned.
Bail is a constitutional right but must be granted within statutory and procedural limits.

Court orders

1.A warrant of arrest be and is hereby issued against ISAAC MAINA NJOKI
2.The OCS Bondeni Police Station shall remit the Kshs 2,000 to the court for forfeiture within 7 days
3.The OCS Bondeni Police Station shall file an affidavit within 14 days explaining this illegal bail
4.The Court Administrator shall forward this ruling to the Inspector General of Police for administrative action

Authorities

Legislation

Penal CodeSection 268(1) as read with Section 275
Constitution of Kenya, 2010Article 49(1)(h)
Criminal Procedure CodeSection 37

Cases cited (2)

Mwangi v Republic
[2024] KEHC 9453 (KLR)
Republic v OCS, Nairobi Central Police Station
[2020] eKLR

Jurisdiction invoked: Criminal jurisdiction over charges under Section 268(1) as read with Section 275 of the Penal Code, with Article 49(1)(h) of the Constitution on bail rights

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Republic v Wanjiku & another (Criminal Case E901 of 2025) [2025] KEMC 140 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/140/eng@2025-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.