Moses Nanoka Egadwa & 1 other v The Republic

5. The report in respect of the 1st applicant Giulio Giardani indicates that the court may consider releasing him on bond but with stringent measures to ensure that his possibility of being a flight risk is mitigated. It is indicated that for the 1st applicant who is Italian, his Italian family friend and his Kenya friend (Romeo Mwagongo) are willing to assist him if granted bond. 6. The report in respect of Moses Nanoka Egadwa indicates that his family members and family friend, Romeo Mwagongo are willing to assist him if he is granted affordable bond terms. 7. The Lower Court, Hon. Lewa (PM), now SPM) who made the substantive ruling denying the applicants bond cited the following reasons for her decision: 8. 9. a. The applicants were faced with serious charges of high public interest. Releasing them may cause them to abscond or jump bail especially the 1st applicant who was on a tourist visa. b. The State had intimated that multi-agency investigations were yet to be finalized and release of the applicants at that stage might interfere with investigations and even witnesses. c. The 1st applicant was a flight risk because he is not a resident or bearer of any entry permit in the country, save for a tourism visa that was soon expiring. d. The State had intimated its intention to fast track the case. The court indicated that the case would be heard on priority basis. There is no doubt that the charges facing the applicants are very serious, considering the attendant punishment if convicted. The charges and the attendant punishments are as follows: i. Trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act as amended by the Narcotic Drugs and Psychotropic Substances (Control)(Amendment) Act, where the alleged trafficked narcotic drugs namely Cannabis was said to weigh 730.78 grams the punishment is a fine of not less than fifty million shillings or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment; ii. Operating a clandestine laboratory contrary to section 5B(1)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act as amended by the Narcotic Drugs and Psychotropic Substances (Control)(Amendment) Act, 2022 the punishment is a fine of not less than twenty million shillings or a term of imprisonment of not less than twenty years, or both such fine and imprisonment. iii. 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 the punishment is a fine of two hundred and fifty thousand shillings or three, times the market value of the prohibited plant, whichever is, the greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment. iv. Conspiracy to traffic in Narcotic Drugs contrary to section 4B(4) of the Narcotic Drugs and Psychotropic Substances (Control) Act as amended by the Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022 the punishment is a fine of not less than one hundred million shillings and to imprisonment for life. In the case of Republic v Richard David Alden [2016] KEHC 4246 (KLR) the accused person was charged with the offence of murder whose ultimate sentence is death although the court has a discretion https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19432/eng@2025-12-18 2

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to meet out a lesser sentence. The High Court in that case extensively considered the issue of grant of bond to an accused person, touching on various factors such as those raised in the present case. The Court Lesiit, J (as she then was) stated that: a. The Bail and Bond Policy Guidelines were formulated specifically to guide the police and judicial officers in the administration of bail and bond. The guidelines set out what the courts should bear in mind when considering an application for bail. They are similar to those set out under section 123A of the Criminal Procedure Code. These general considerations are: the nature of the offence; strength prosecution case; character accused and antecedents; failure by the accused to observe previous bail or bond; witness interference; protection of the victim; relationship between the accused and the potential witness(es); whether the accused is a child offender; whether the accused is a flight risk; if the accused is gainfully employed; public order; peace security; and whether there is need for the protection of accused person. b. Under the guidelines the general principles which apply to questions of granting or denying bail or bond are also set out and these include the right of the accused to be presumed innocent; accused right to liberty; accused obligation to attend court; right to reasonable bail and bond terms; bail determination must balance the rights of the accused persons and the interest of justice and considerations of the rights of the victims. 10. The people of a country express their outrage for a particular offence through the sentences passed by their legislative representatives for such offence. In this case, there is no doubt that by providing hefty punishments of minimum sentences by way of fines and long terms of imprisonment for most of the offences the applicants are charged with the country wishes to condemn in its strongest terms the scourge of use of narcotic drugs within its territory. This court is fully aware of an accused’s person’s right under Article 50(2)(a) of the Constitution to be presumed innocent until the contrary is proved. I only say this to express the fact that the offences are serious and not for any other reason. 11. Although learned counsel for the applicants submitted that public interest cannot be used as a gauge to deny an accused person bond, I believe that when a people express abhorrence and outrage of a certain offence through imposing of hefty punishment, it is an indication of the public’s concern on the effects of that offence upon the community and its condemnation of the same. I am aware of the applicants’ right to be presumed innocent until it is established otherwise. However, that does not change the fact that they are charged with an offence for which the public considers very serious through imposition of the hefty sentences. Therefore, the issue of public interest in the matter cannot be overlooked especially as observed by the learned trial Magistrate that it may be a motivation for the applicants to abscond. I am persuaded to follow the decision of the High Court in the case of Watoro v Republic [1991] KEHC 18 (KLR) where it was held that: a. The paramount consideration in bail applications is whether the accused will turn up for his trial. b. The seriousness of the offence in the terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. c. It would be wrong to leap to the conclusion that the accused was guilty merely because he had been charged and to decide the bail application on that basis. d. Nevertheless, the seriousness of the offence has a clear bearing, which the Court ought to bear in mind, on the factors influencing the mind of an accused facing a charge in respect of that offence is to whether it would be a good thing to skip or not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19432/eng@2025-12-18 3

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12. In the case of Republic v Fredrick Ole Leliman & 4 others [2016] KEHC 992 (KLR), the High Court considering the issue of public interest in the grant of bond/bail to an accused person said that: “ Under the Bail and Bond Policy Guidelines, (BBIC) the courts have a duty to balance the rights of an accused person and the interest of justice. As much as the courts are expected to preserve the liberty of an accused person, public interest must also be taken into account.” 13. In the case of Republic v Joktan Mayende & 3 others [2012] KEHC 5551 (KLR) “Administration of public justice particularly in criminal sphere includes the process of adjudication as well as investigation of offences. On this, the following words of Mac Dermott, Lord Chief Justice in the case of Reg v Bailey [1956] NI 15 at p. 26 are most apt: “ The administration of public justice, particularly in the criminal sphere, cannot well be confined to the process of adjudication. In point of principle we think it comprehends functions which nowadays belong to, in practice almost exclusively, to the police, such as the investigations of offences… ” It also recognizes the compelling-state-interest principle where the state's constitutional duty to bring offenders to book should be free from wanton interference of its witnesses, and is to be weighed against the right to liberty of the person charged if that person is being accused of interfering with witnesses in his own cause. It is therefore a matter of great public interest to allow the course of justice to run without being hindered by any person, a group of persons, a state organ or organs whatsoever, otherwise the pillar of justice that is the enabler of constitutional rights and obligations in society will collapse, and with it will tumble the entire societal fabric, social justice and the rule of law.” 14. The other factor that cannot be overlooked is that the 1st applicant is not only a foreign national but that he is in the country on a temporary tourist visa which his learned counsel submitted before the trial court that was expiring in October this year. He would need to get new permission to remain in the country. There is no indication given of how intends to renew the tourist visa if granted bail or bond in this case. 15. The third issue is the strength of the case for the prosecution. This factor has to be considered with a lot of care lest it be interpreted to mean that the court is making conclusive remarks on the case. However, it is a factor to be considered all the same. In the case of Republic v Danson Mgunya & another [2010] KEHC 4116 (KLR) the High Court observed that since this criterion is inconsistent with the right of an accused person to be presumed innocent it should be applied with great caution and only in exceptional circumstances like where there is a statement(s) that shows that the accused person was caught-red handed or where there is a lawfully admitted confession. The investigating officer stated in his affidavit in objection to bond that the alleged narcotic drugs were recovered at the residence of the two applicants. Indeed, from the charges, there are allegations of storage and cultivation of narcotic drugs and operation of a clandestine laboratory at the residence. The prosecution is indicating two things. First, that the residence of the applicants is an exhibit in the matter. Secondly that even if they were to be released on bond, in those circumstances, it may not be possible for them to access those premises as they are still under police guard. 16. All these factors have to be balanced with the rights of the applicants to be presumed innocent until otherwise proved which then extends to their right to liberty. 17. As was hled in the case of Watoro v Republic [1991] KEHC 18 (KLR) the main function of bail and bond is to ensure that an accused person attends his trial. So that all the other factors are hinged on this https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19432/eng@2025-12-18 4

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criterion. They demonstrate whether or not the prosecution has established on a balance of probability the possibility that the accused person likely to turn out for his trial. 18. The Probation Officer has returned a Report that all the same, each of the applicant’s may be released on stringent bond terms. 19. However, release of an accused person on bond is at the discretion of the trial court. The trial court in this case found that there were compelling reasons not to release the applicants on bond. This being an application for revision, this court found that there were some procedural faults that were not observed by the trial courts while arriving at their respective decisions. Those faults have now been addressed. I have considered the application in its entirety and I am satisfied that there were compelling reasons advanced by the prosecution before the trial court as stated above that warrant denial of bond to the applicants. They will remain in custody pending hearing and determination of their case with directions to the trial court to expedite the same as was indicated. 20. Orders accordingly. DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS, THIS 18TH DAY OF DECEMBER, 2025. ANDAYI W. FRANCIS JUDGE In the presence of: The 1st applicant in physical courtroom. He had attended a different case in the Magistrate’s Court the 2nd applicant in person from Kwale prison. Counsel for applicants not present. Ms Vallerie for the respondent. Ummu: Court Assistant. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA. KWALE HIGH COURT HIGH COURT DIV DATE: 2025-12-19 11:16:09 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19432/eng@2025-12-18 5

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