Ogba Mba Egwu v Oddp

a. That the honourable court be pleased to review and or set aside the ruling dated 28th August 2025 and grant the applicant bond terms pending the hearing and determination of MCCR E148 of 2024. 5. That application was supported by an annexed affidavit by the applicant in which it was deposed that he is a Nigerian Citizen and a resident of Kenya where he has lived and worked for the last over ten years and was lawfully married to one Josephine Ambwao Hashesha a Kenyan citizen with who they have three minor children aged 4, 3 and 1 years respectively. 6. He stated that whereas his country of birth was Nigeria , he had over the years established deep roots in Kenya which had since become his second home and had a fixed place of abode at 48 Chalbi driver Lavington ,within Nairobi County. 7. It was contended that the court denied him bond on the sole ground that he was a foreigner and consequently a flight risk yet he had local connection in Kenya through marriage and business and that the one year he had been in custody had caused tremendous trauma and suffering to his wife who was unable to sustain his family during these tough economic times. 8. In response to the application , the respondent filed grounds of opposition in which it was stated that: 9. a. The application is un merited and an abuse of the court process b. The applicant was charged in MCCR E148 /2024 before the magistrate s court at JKIA with operating laboratory c. The prosecution filed an affidavit sworn by the investigating officer opposing bail. d. The applicant through his advocates opposed that application for denial of bond and bail. e. The applicants counsel is misleading this court through his affidavit, by averring that the Learned Magistrate denied the applicant bond by the sole reason of being a foreigner. f. The learned magistrate applied and considered the arguments for both the applicant and the prosecution during the bond bail hearing g. The Learned Magistrate gave a detailed ruling as to why bail/bond was denied to the applicant. A. The applicant has not put in any new material /evidence before this court to show that the learned magistrate acted in bad faith /or errored in law in her ruling B. That the right to be admitted to bail/bond is not absolute , where there are compelling reasons for court not to grant bail then the same can be denied. The application was further supported by a supplementary affidavit in response to the grounds of opposition filed by the respondent in which he started that the mere existence of a charge and the pendency thereof did not extinguish his constitutional right to bail and that the affidavit opposing bail was premised on conjecture and presumptions that he was a foreigner and therefore a flight risk and that he was willing to surrender his passport and provide reliable Kenyan sureties . Submissions 10. On behalf of the applicant, it was submitted by Mr. Ondieki that when the applicant was arrested he had a valid visa and that he has children with a Kenyan citizen and that his in-laws were willing to stand surety for him . https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19358/eng@2025-12-16 2

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11. On behalf of the prosecution it was submitted by Ms Kariuki that the affidavit of marriage was filed after the applicant had been arrested and that the lease agreement was not in the applicant’s name but in the name of the alleged wife and that being a revision ,the applicant had not stated how the trial court erred. It was contended that since the applicant has business in Nigeria , he as a flight risk. Determination 12. This being a revision , the court called for the lower court file from which I have noted that in determining the application for bond , the court called for a pre-bail report on the applicant herein in which it was stated that one of the applicant’s brothers trades in bedsheets in Lagos , one runs a restaurant in Abuja and one runs a truck business for the applicant and that the applicant moved to south Africa in the year 2006 where he engaged in the business of gold rearing for nine years before going back to Nigeria where he engaged in the business of selling second hand clothes within east Africa. 13. It was stated that he was allegedly married to one Josephine Abwuo without any documentation and that the house they lived in was registered in the wife’s name a d that their children needed his guidance and financial support. The report did not find him suitable for bond since he is widely travelled. 14. In denying the applicant bond the court had this to say “ 30. The fact that Egwu is married to a Kenyan and that they have three children was placed before the court by Mr. Kimani and Ms Ontiti , previously defence counsels representing Egwu. The court record bears witness that they put their best foot forward in putting up a spirited defence. Indeed, they went above and beyond in filling documents including birth certificates for the children and detailed of a company in Nigeria to justify Egwu being granted bond . the arguments presented by Mr. Ondieki and the cases cited are not new circumstances. Indeed, the only new circumstance in the eyes of the court is that Mr. Egwu has a new Advocate. The fact that the mother of their children swore an affidavit in support of the bond application is not in tandem with the principles and tenets of criminal law 31……………… But the true north remains that there is no change of circumstances regarding Egwu “ 15. Since the application before the court is revision of the courts decision to deny bond on the basis of the change in circumstances , the court ought to look at the initially reasons upon which the trial court declined to grant bond. The court had this to say: “ 30. 30. One of the counts in this case touches on the allegation of existence of a clandestine laboratory. It is the first time such a case is being brought before this court and definitely the first in Kenya under the amendments made in 2022 to the narcotic and psychotropic substances control Act No 4 of 1994 (NPSA). The court takes judicial notice to the changes to NPSA. The amendment introduced among other charges , charges relating to clandestine laboratory and precursor chemicals. It is the totality of these that generated much debate around the release of the accused persons ……………………. 74. With regard to Ogba the court consider the decision by justice Kimaru (as he then was ) in Oluseye oledeji shittu v Republic Misc. Applicant ion no 130 of 2016. The accused was charged under prevention of terrorism Act. Terrorism like the charge facing Ogba under Narcotic and Psychotropic Substances https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19358/eng@2025-12-16 3

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(control) Act no 4 of 1994 is a form of organized crime. That applicant was denied bail in the trial court and moved to the High court seeking bail 75. Just like Ogba , the applicant informed the court that he was married to a Kenyan and in his case was conducting business in Kenya , Rwanda and Uganda , Judge Kimaru went on to say Although the applicant claimed that he was married to a Kenyan ( and indeed produced a photocopy of an identity card of one jane Wanjiru Oladenji ) …… if indeed he owned property in Kenya , nothing prevented him from producing title document or agreement for purchase of the said properties in support of his claim that he has a fixed abode in Kenya 76. the difference in Ogba’s case is that he is not estranged from the mother of their children. The documentation attached to the further affidavit shows that he is the father of the children but there is nothing that ties him to the person who is referred to as his wife. Judge Kimaru concluded that it was likely the applicant before him would abscond if released 77. The court also relies on another decision by justice Kimaru (as he then was ) and this is the case of Jackline Ahmidiwe swai v republic [2019] e KLR .Jackline was from Tanzania. She was caught trafficking heroin. The trial court denied her bond and she appealed this decision to the High Court. Justice Kimaru stated that the mere fact that a person is a foreigner is not sufficient ground to deny bond. He said the court has to take into consideration other factors ……… 78. The Court holds the view above by Justice Kimaru in both cases regarding Ogba in that he would abscond if released ….” 16. The court’s jurisdiction on revision is provided for under Article 165 of the Constitution ad sections 362 and 363 of the Criminal procedure Code which allows the court to call for and examine the proceedings of the lower court to satisfy it of the correctness and propriety of the decisions and or orders of the said order. 17. This court in the case of George Alwada Omweri v Republic [201] e KLR had this to say on the exercise of the revision powers by the court on bail application: 17. Section 123(3) gives the High Court the power to direct that a person charged before a lower court be admitted to bail or that bail required by a sub-ordinate court or police officer be reduced. The question to be answered in this application is whether the High Court has powers to cancel bail granted by the lower court? 18. Article 165(6) of the Constitution of Kenya 2010 provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person or body or authority exercising judicial or quasi judicial functions and in sub-article (7) for the purpose of exercising the supervisory jurisdiction the High Court may call for the record of proceedings before any subordinate court or person, body or authority referred herein and may make any order or give any directions it considers appropriate to ensure the fair administration of justice (Emphasis added) 19. A reading of this Article of the Constitution clearly shows that the High Court now has supervisory jurisdiction both in respect of civil and criminal matters arising from the subordinate courts in addition to the supervising quasi judicial bodies to ensure the fair administration of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19358/eng@2025-12-16 4

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20. In respect to criminal matters Section 362 and 364 (1) (b) of the Criminal Procedure Code provides as follows: S. 362 the High court may call for and examined the records 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. S. in the case of a proceeding in subordinate court the record of which has been called for or which 364(1) has been reported for order or which otherwise comes to its knowledge, the High Court may (b) in the case of any other order other than an order of acquittal alter or reverse the order. 21. It therefore follows that this court has both Constitutional and statutory jurisdiction to determine this matter herein by calling for the records of the trial court to satisfy itself as to either the correctness, legality or propriety of the finding of the trial court however the jurisdiction of the court herein must be exercised with the legal splenetic of revisionary jurisdiction is upon which the application is brought which jurisdiction include cancelling or reversing the bonds terms granted in appropriate cases. 22. In exercising supervisory jurisdiction under Article 165(6) the court does not exercise appellate jurisdiction and therefore cannot review or reweigh evidence upon which the determination of the lower court is based, it can only demolish the order which it considers erroneous or without jurisdiction and which constitutes gross violation of the fair administration of justice but does not substitute its own view to those of the inferior tribunals. 23. In Veerappa Pillai V Remaan Ltd The Supreme court of India has this to say:“ The supervisory powers is obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order be made…..” 24. The above principle is applicable to the exercise of revisional jurisdiction of the court wherein the court too cannot sit in appeal and re-appreciate the evidence. It is only exercised to correct the manifest error in the order of the subordinate courts but should not be exercised in a manner that turns the Revisional court into appeal. The jurisdiction cannot be exercised mainly because the lower court has taken a wrong view of the law or misapprehended the evidence tendered. See PATHUMMAA & Anor v. MUHAMMED 1986 (2) SCC 585 where it was stated that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of the magistrate on question of facts. 25. It therefore follows that this court cannot re- appreciate the evidence that was tendered before the trial court as its role is limited to looking at the correctness or otherwise of the decision by the trial court and not to substitute its decision with the of the trial court as if it were on appeal . 26. Was there an error on the court decision herein to deny the applicant bond ? a look at the decision thereon confirms that court considered all the material facts placed before her including the fact that he is married to a Kenyan and weighed the same against the applicant’s business interest outside the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19358/eng@2025-12-16 5

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Kenya and came to the conclusion that the same was a flight risk who was likely to abscond should he be released on bond . 27. Since there is no set scientific method of examining and determining the conduct of the applicant during the trial and taking into account the fact that the trial against the accused has commenced , which now brings in account the aspect of the strength of the prosecution case, I find no error and or illegality in the decision of the trial court in declining to grant the applicant bond and therefore dismiss the application herein as lacking merit. 28. As stated by the trial court , the fact that the applicant is married to a Kenyan on its own is not a compelling reason for the grant of bond. The same must be weighed against the other factors which the trial court considered in including the fact that the pre-bail report filed before the court did not support grant of bail to the applicant and cannot therefore be faulted. 29. The court was a live to the emerging factor of a clandestine laboratory which is a new trend in the country while denying the applicant bond and as stated herein considered the pre-bail report in arriving to the determination herein and therefore find no error and or illegality with the decision challenged. 30. I therefore find no merit on the application herein which I dismiss. DATED SIGNED AND DELIVERED THIS 16th DAY OF DECEMBER 2025 J WAKIAGA JUDGE In the presence of: Court assistant – Irene Ms. Kariuki for the state Mr. Oyaro Ondieki for the accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19358/eng@2025-12-16 6

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