Giulio Gianardi & 1 other v Odpp & 1 other

2023 and 30th July 2025 in land parcel No. Kwale/Mwabungo/S.S/224/842 in Msambweni within Kwale County jointly with others not before court operated a clandestine laboratory in contravention of the provisions of the said Act. c. Count 3 Cultivation of prohibited plants contrary to section 6(a)(b) of the Narcotic Drugs and Psychotropic Substances (Control) Act as amended by the Narcotic Drugs and Psychotropic Substances (Control)(Amendment) Act, 2022 that on diverse dates between 31st August 2023 and 30th July 2025 in land parcel No. Kwale/Mwabungo/S.S/224/842 in Msambweni within Kwale County jointly with others not before court cultivated prohibited plants namely Cannabis in contravention of the provisions of the said Act. d. Count 4 Conspiracy to traffic in Narcotic Drugs contrary to section 4(B)(4) of the Narcotic Drugs and Psychotropic Substances (Control) Act as amended by the Narcotic Drugs and Psychotropic Substances (Control)(Amendment) Act, 2022 that on diverse dates between 31st August 2023 and 30th July 2025 in land parcel No. Kwale/Mwabungo/S.S/224/842 in Msambweni within Kwale County jointly with others not before court cultivated prohibited plants namely Cannabis in contravention of the provisions of the said Act. 2. 3. The application is expressed to be filed under sections 362, 364 and 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) for the court to satisfy itself as to the correctness, legality or propriety of the ruling or order issued by the magistrate’s court, Hon. L. T. Lewa, (PM)(as she then was) on 26th August 2025 denying the applicants bail or bond on grounds that: a. The accused persons are faced with serious charges of high public interest. Releasing them may cause them to abscond/jump bail especially the 1st accused person who is on a tourist visa that is soon expiring. b. The State has intimated that multi-agency investigations are yet to be finalized. Release of the accused persons at this stage may interfere with investigations and even witnesses. c. The 1st accused person is a flight risk. The court would not chance his release especially noting that he is not a resident or bearer of any permit in the country, save for a tourist visa that was soon expiring. d. The State had intimated an intention to fast track the case. The court would oblige them and direct that the case be expedited and heard on priority basis. e. In the event by the third month the State would not have made headway in prosecuting the case, the accused persons shall be at liberty to move the court to review the orders. The application prays for this court to revise the above orders denying bail/bond to the accused person and make determinations regarding: a. Whether the trial court was correct in denying bail and bond to the accused persons for three months. b. Whether the trial court was correct in condemning the accused persons for three months’ remand pending prosecution of their criminal case. c. Whether the accused persons can be denied bail in law on account that the matter is of high public demand. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 2

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d. Whether the investigating officer offered sufficient grounds to warrant denial of cash bail or bond. 4. The applicants pray for the application to be heard ex-parte and the magistrate’s orders to be revised and the applicants to be released on reasonable cash bail or bond terms. 5. The applicants through a different counsel filed yet a new application dated 21st October 2025 in Kwale High Court Misc. Criminal Application No. E048 of 2025 seeking the following orders: a. This court to call for the record in Kwale Chief Magistrate Criminal Case Number E360 of 2025 for purposes of reviewing the ruling of Honourable Joy Mutimba dated 25th September 2025. b. This court to review and set aside the ruling of Honourable Joy Mutimba dated 25th September 2025 and grant reasonable Bond/Bail terms and/or issue strict bond terms commensurate to the offence charged. c. This court grants stay of proceedings in Kwale Chief Magistrate Criminal Case Number E360 of 2025 pending the hearing and determination of this Application. d. This court to order that the said Criminal Case Number E360 of 2025 be transferred to another court for hearing and determination. 6. The same is similarly an application for revision of the learned trial magistrate’s decision Hon. Joy Mutimba (SRM) declining to review the court’s earlier orders denying the applicants bail/bond. The application is similarly filed under Article 165(6) and (7) of the Constitution, sections 362, 364(1) of the CPC and all other enabling provisions of the law. 7. The common grounds in support of the application as outlined on the face thereof and expounded in the supporting affidavits sworn by each of the applicants are that: a. The applicants have been in custody since 30th July 2025 when they were arrested and arraigned before court and upon application by they prosecution, they were detained for 21 days. b. They were charged before court for the above stated offences on 25th July 2025 before Hon. Lewa, PM (as she then was). c. Their application to be released on bond was declined by the plea court for reasons: i. That they are flight risks as the 1st applicant is a foreign national. and closely related to the 2nd applicant. ii. That the case is still under investigation. iii. That the offence is serious. iv. The prosecution intends to expedite the hearing. d. They made a subsequent application for review of the court’s order declining their release on bond before the trial court Hon. Joy Mutimba but the same was declined again on 25th September 2025 on grounds that there was no change of circumstances. e. That the prosecution did not offer any compelling reasons for the denial of bond as envisaged in article 49 of the constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 3

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f. That the 2nd applicant is a Kenyan, and a family man who is well rooted in society. g. That with respect to the 1st applicant, Kenya has a robust Mutual Legal Assistance agreement with Italy where the 1st applicant comes from and he is ready to deposit his travel documents in court and to abide by any conditions set by the court. hear. That being a foreigner is not prima facie evidence of being a flight risk as there are less restrictive means the court can use to ensure the attendance of the accused for the hearing hereof. i. That at the time of filing the application the prosecution was not ready with pre-trials yet the applicants were unfairly denied bond on the premise that the prosecution will expedite the hearing. 8. In his supporting affidavit, the 1st applicant Giulio Gianardi deposes that he is an Italian citizen lawfully in Kenya on a valid visa. That he has been denied bond/bail on grounds of his being a foreign national and therefore a flight risk. He deposes that he has no intention whatsoever of absconding trial and is willing to abide by any terms of bond that the court may impose and is ready to surrender his passport to court and to abide by any reporting conditions. I note that he has even set out the terms of bond that he thinks if granted he would abide by them. 9. He deposes extensively that his status as a foreign national should not be reason to deny him bond/bail. 10. In his supporting affidavit, the 2nd applicant Moses Nanoka Egadwa deposes that he is a Kenyan, a husband, a father and a law abiding citizen with no record of criminal conviction, and deeply rooted in his community, a permanent resident of Kwale County where he stays with his said family and has strong social and family ties. He has a stable income from his employment/business that enables him to cater for his family. He is therefore not a flight risk and is unlikely to abscond trial. I note however that this deposition that he has a wife and child appears to contradict his earlier representation to the plea court that upon his arrest he had left behind a nine-year old child that was unattended to and the court indicated that the child had been taken away by his sister. If indeed he has a wife, the position would be that she would be taking care of the child. This position needs to be clarified. 11. He deposes that the grounds upon which he was denied bond were not compelling reasons but generalities. 12. He deposes further that he is ready to provide suitable sureties acceptable to the court if granted bond/ bail, willing to abide by all conditions set for his release on bond including reporting to a police station and not to interfere with witnesses. 13. The learned prosecution counsel in this court indicated that she did not wish to make a reply to the applications. 14. There were no submissions made on both applications. 15. Both applications are for revision, and so the issue for determination by this court is the correctness, legality or propriety, of the decision of the learned trial magistrates on 26th August 2025 and 25th September 2025 respectively and also the regularity of the proceedings had before the trial courts. In the case of Republic v James Kiarie Mutungei [2017] KEHC 7170 (KLR) the High Court in explaining the ambit of section 362 CPC held that: “ the function of the court under section 362 of the Criminal Procedure Code as read with section 364 is to enable the court to scrutinize and examine the correctness of facts of a subordinate court or tribunal so as to make a finding on legality or propriety. Legality means https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 4

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lawfulness, strict adherence to law, correctness and propriety ordinarily having the same meaning. It can be deduced from this evaluation that the jurisdiction on revision will be invoked where there is a decision by a subordinate court, the decision is not subject of appeal, the grounds of revision must exist against the decision being challenged from the subordinate court. The interference under section 362 by this court on revision can only be justified if the impugned decision is grossly erroneous, to justness appropriateness and suitability to trial. The trial magistrate has not complied with the provisions of the law, the findings made and the decision reached failed to take into account the evidence that there was a misdirection of facts on the face of the record, the parties in the case were not heard or given an opportunity to present the case before the decision or the decision being contested by the aggrieved party was arbitrary amounting to abuse of the court process.” 16. The Court is not obliged to hear the parties on an application for revision (see the case of (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR)) but this court directed the applicants to serve the application to give the respondent the opportunity to file a response thereto. The respondent did not file a response, the learned prosecution counsel indicating that the State did not wish to make any response to the applications. 17. The issue, the subject of this application arises from the magistrate’s court’s decision denying the applicants bond and subsequently declining to review that decision. The decision on whether or not to grant or deny an accused person bond is at the discretion of the trial court. In exercising the discretion not to grant bond, the court is required to ensure that there are compelling reasons to warrant the denial. 18. There are several constitutional and statutory provisions which underpin an accused person’s right to be released on bail or bond. Article 50(2) of the Constitution provides for the rights of an accused person to a fair hearing whose components are inter alia the right to be presumed innocent until proven guilty. Article 49(1)(h) of the Constitution guarantees an accused person the right to be released on bail unless there are compelling reasons for bail to be denied. These compelling reasons have to be provided by the State. The constitutional provisions cited above with respect to bail are given statutory effect in section 123 and 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya. Section 123 CPC provides that: 1. When a person is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part. 19. 2. The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive. 3. The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced. Under this provision of the law both the lower court and the High Court have power to direct that an accused person be released on bail or bond. The lower court in this case has made decisions declining to admit the applicants on bond. The applicants have however not invoked this court’s jurisdiction under section 123(3) to apply that they be released on bond but have instead come under the supervisory and revisionary powers of the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 5

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20. Article 165(6) and (7) of the constitution under which this application is brought provides as follows: 6. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 7. For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. 21. In furtherance of the constitutional edict, section 362 CPC enables the High Court to: “ 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 such subordinate court.” 22. Section 364 CPC further provides for the powers of the High Court on revision thus: (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— a. … b. in the case of any other order other than an order of acquittal, alter or reverse the order. c. … 23. This court’s mandate on revision as provided for in the above sections of the CPC is to peruse the record with a view to satisfying itself as to the correctness, legality or propriety of the findings, sentence or order recorded and as to the regularity of the proceedings. 24. What the appellants have done herein is akin to making an appeal against the decisions of the magistrates’ courts. The revisionary jurisdiction of the High Court under section 362 CPC is different from the appellate jurisdiction under section 347 CPC. Under the revisionary jurisdiction what the court is called upon is to satisfy itself that a finding, order or sentence made by the subordinate court is correct, legal and proper and that the proceedings are or were regular. In any case, section 347 CPC which provides for appeals to the High Court from Magistrates Courts is only on conviction and not interlocutory issues such as review of bond. In my understanding, under section 123 CPC, an applicant for bond need not come under the revisionary powers of the High Court but make a direct application to be released on bond even though citing that the same has been denied by the lower court. But review of bond terms would apply under the same section 123 CPC where the applicant finds the terms fixed by the lower court to be onerous or excessive for him to comply. 25. I have considered the decision of the learned trial magistrate Hon. T. Lewa (now SPM). I note that the learned magistrate considered the reasons offered by the prosecution urging the court to deny the applicants bond/bail and made a determination on the issues finding that there were various compelling reasons to deny both applicants bond/bail. It was upon the same that the subsequent decision of Hon. Mutimba was based, finding that there was no change of circumstances to warrant a review of the earlier decision. 26. Considering the orders that this court is going to issue, I do not find it appropriate to delve into the issue of the correctness, legality or propriety of the proceedings before the two courts below at this point. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 6

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27. However, I note that in both decisions, the two courts did not make differentiated determinations on each of the applicants on whether or not each was suitable to be admitted to bond/bail. Courts have reiterated time and again that the primary purpose of bail is to secure the accused person’s attendance at court to answer the charge at the specified time. (See the case of Ng’ang’a v Republic (1985) eKLR.). The High Court, Lesiit, J in Joses Kimathi Murumua & 3 Others v Republic [2013] eKLR, upon considering the Ng’ang’a v Republic case (supra) observed that: “ …The learned trial magistrate, in exercise of discretion whether or not to grant bail to all the accused persons jointly charged in this case, would have been perfectly justified to give varying bond terms to the accused persons depending with the merits, circumstances of their case and the factors unique to each of them. The learned trial court is mandated to consider the bond application by each accused person and to examine each accused person, based on the peculiar facts of each accused person, and the circumstances pertaining to their respective case and also the merits of the application. Having done so, the trial court would then be expected to determine which of the accused person qualify to be granted bond, and which ought not to and give reasons for each decision. To give an example a court would be in order to give a child bond and deny an adult based on the age and unique circumstances of each accused.” 28. I am persuaded that this decision is a good guide to the learned trial magistrates to understand that in case they felt shackled by the joint charges against both applicants, it was in order for them to consider the individual circumstances of each accused person. 29. In the present case, there are clear circumstances to warrant differential treatment on the determination of grant or denial of bond for the applicants. 30. It is quite clear that each of them presented a unique set of circumstances that required separate consideration before arriving at the decision. The 1st applicant is a foreign national on a tourist visa and there was not much revealed about his stay in Kenya except for his assertion that he had regularly been visiting Kenya for sometime now. On his part, the 2nd applicant is a Kenyan with permanent residence in Kwale and he said he has a family with a child to take care of. 31. Secondly, I find that both courts overlooked an important step in the consideration of the application to release the applicants on bond, the views of the victims and the community. Although not mandatory, it is desirable to obtain a bail report before making a decision on whether or not to grant bond/bail and if yes, on what terms. The Bond and Bail Policy Guidelines provide in paragraph 4.26(c) that the court may request for a bail report where the prosecution objects to bail with plausible reasons. 32. It is the contention by the 2nd applicant that he had good community ties and therefore releasing him on bond will not in any way jeopardize the trial by him either absconding or interfering with witnesses. This assertion would have been tested by finding out the views of the community from which he comes. 33. Those views would usually be available through a bail report called for by the court and provided by the Probation and Aftercare department. 34. The learned magistrate Hon. Lewa (now SPM) who was the plea court, in her decision indicated that having denied the applicant’s bond, she had considered the fact that the State had intimated that the case would be expedited and heard on priority basis. After filing the second application herein, learned counsel for the applicants Mr. Wangila informed this court that when the case came up for hearing on 30th October 2025, the prosecution indicated that it was not ready to proceed and so the case was going to be adjourned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 7

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35. I also note that the court had indicated that in view of the order for expedited hearing, in the event that the State would not have made headway in prosecuting the case, the applicants were at liberty to move the court for review of the orders denying them bond. The applicants appear to have moved the trial court before the lapse of three months, I believe since they had engaged a different counsel, but their application was not allowed. In the Bail and Bond Policy Guidelines produced by the National Council on the Administration of Justice Guideline 4.36 provides that: “ Courts shall inform accused persons of their rights to apply for review of bail decisions and conditions. Bail decisions and conditions should be reviewed on a regular basis, as the circumstances of the accused person and the case change.” 36. Where the trial court has failed to review the bond and bail terms, as provided for under section 123 CPC and the Bail and Bond Policy Guidelines, the accused person has statutory recourse to this court. 37. In saying so I do not lose sight of the fact that the charges facing the applicants are very serious and carrying very severe punishments on conviction. 38. The applicants had also made prayers that this court grants stay of proceedings before the trial court pending the hearing and determination of this application and that the case be transferred to another court for hearing and determination. They did not advance any reason for those prayers and so the same are found to be without merit and are accordingly declined. 39. In view of the infractions by the lower courts in failing to give differentiated bail bond considerations for each applicant and also failing to call for bail reports, I find that the applications herein have merit and the same are allowed in the following terms: 40. a. The decisions of the magistrates’ courts denying the applicants bond on 26th August and 25th September 2025 respectively are hereby set aside. b. A bail report is called for in respect of each of the applicants. The same to be prepared by the Probation and Aftercare department. c. The court will make a final determination on the application upon receipt of the bail reports. d. Mention before this court on 8th December at 8.30 a.m. for further directions. Orders accordingly. RULING DELIVERED, DATED AND SIGNED ON VIRTUAL PLATFORM, TEAMS THIS 26TH DAY OF NOVEMBER 2025 HON. ANDAYI W. F. JUDGE In the presence of: Applicants present from Kwale Prison. Wangila for the applicants. Vallerie (Ms) for the respondent Ummu - Court Assistant SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19426/eng@2025-11-26 8

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