Paminus Kiage Gwaro v Odpp & 1 other

f. Costs of the application to be provided for. 2. There is an affidavit sworn on 2nd October 2025 by Dorcas Ayoo Oloo, a spouse to the applicant in support of the notice of motion. 3. The facts and the grounds relied upon for the said orders sought were laid down in the statutory statement dated 28th September 2025 filed alongside the notice of motion. The statutory statement is laid out under Order 53 Rule 1(2) of the Civil Procedure Rules. 4. It is not clear under what provisions of the law the notice of motion (it is not a chamber summons) application at the ex-parte stage was anchored for the following reasons. In the heading, the applicant cites various constitutional provisions, the Fair Administrative Action Act (FAAA) and it also indicates that this is an application for leave to apply for the various JR orders. However, Order 53 CPR and the Law Reform Act under which leave is ordinarily sought through a chamber summons are not cited. Leave to commence JR proceedings is sought ex-parte by way of Chamber Summons and once the same is obtained the substantive notice of motion is filed within a specified period. These procedural steps are crucial in JR proceedings due to their special nature. Failing to satisfy these procedural requirements can render an application incompetent (see the case of Republic v Chief Magistrate, Busia; Haroon Yuasa Limited (Exparte); Amukoya (Interested Party) [2023] KEHC 23437 (KLR). 5. Take for instance the present application which seeks leave to commence JR proceedings yet it is not filed ex-parte by way of chamber summons. More importantly, it was seeking that the leave sought, if granted, operates as a stay of proceedings in the criminal cases before the magistrates' court. But the application not having been filed under Order 53 Rules 1(1), (2) and (4) of the Civil Procedure Rules (CPR) and sections 8 & 9 of the Law Reform Act (cap. 26) Laws of Kenya, it meant that this court could not proceed to consider the issue of leave ex-parte as it would ordinarily be the case. 6. Therefore, on considering the notice of motion under certificate of urgency as filed, the court directed that the same be served upon all the parties for inter partes hearing. The matter came up next on 18th December 2025. Only the 1st respondent, the DPP was represented in court. I have looked at the affidavit of service sworn on 17th October 2025 by Eugene Nyongesa Wangila and shows that only the DPP through the Kwale office was served with the application. The 2nd and 3rd respondents as well as the Interested Parties were not served with the application. Even though from the heading the Interested Parties are supposed to be eight, only one, Mercy Kajuju Nchebere is identified. The 7 others indicated in the heading are not named anywhere in the body of the application, the supporting affidavit or even the verifying affidavit. I have even looked at the annexures to the supporting affidavit and it only bears a copy of one charge sheet with the complainant as Mercy K Nchebere. 7. In view of the foregoing inadequacies in the present application, it can only be considered as an application for leave to commence JR proceedings. I had directed at the last mention date that it could be considered under the FAAA and not the Order 53 CPR and the Law Reform Act. However, in view of the fact that it was not served upon most of the parties, it will not be appropriate to consider the JR orders. Consequently, at this stage, this court can only consider the relevant prayers in the notice of motion that are not for JR. These are the prayers for consolidation of the charges facing the exparte applicant only for purposes of considering the next prayer which is for admission of the ex-parte applicant to reasonable bail terms. The ex-parte applicant will then need to serve the application upon all the parties for the court to consider the JR prayers. 8. The ODPP Kwale was served with the notice of motion and the directions of the court issued on 14th October 2025. They have not filed a response thereto. Learned prosecution counsel Ms Vallerie informed this court that the applicant has so many matters across the country with some in Mombasa https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19636/eng@2025-12-23 2

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court. The ODPP therefore needed to sit down and put the matters together so that they could respond. She needed to seek further instructions from her seniors on how to proceed in the matter. However, she did not inform the court the source of her information of there being so many cases against the applicant and also even if so, why they had not filed a response to the application for about two months. Given that the applicant is in custody and there being no reason for the 1st respondent not filing a response to the application, the court directed that submissions be made on the application. 9. Learned counsel for the applicant made oral submissions. He submitted that the subject matter of the leases is Kshs 700,000/= and yet the applicant was granted a bond of Kshs 1,000,000/=. According to learned counsel, that was clearly not appropriate. He also submitted that the applicant had been granted bond in other cases in Nairobi. However, he did not provide any details of such matters nor the terms of bond under which the applicant had been released. The submissions are largely on the JR prayers. I have stated above that due to various procedural inadequacies, this court cannot proceed to consider the JR prayers until the applicant properly complies with the statutory requirements. 10. On the issue of the applicant facing multiple charges stemming from one he alleges is from one transaction, the applicant cites the case of Stephen Mwangi Gachoka v Republic [2019] eKLR. 11. On the issue of bond terms, the applicant submits that the denial of bond or the imposition of excessive bond terms of Kshs. 2,000,000 where the complaint was over a Kshs. 705,000 transaction violates Article 49(1)(h) of the Constitution. He has cited the case of Benson Ndirangu Githaiga v Republic [2018] eKLR, where the High Court held that bail conditions must be reasonable and proportionate, and their denial without compelling reasons is unconstitutional. 12. I am satisfied that the factors to be considered in consolidating cases as set out in the case of Nyati Security Guards and Services Ltd vs Municipal Council of Mombasa [2004] eKLR are satisfied. The High Court said that the main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The factors are that there are two or more suits or matters pending in the same court where: a. Some common question of law or fact arises in both or all of them; or, b. The rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or c. For some other reason it is desirable to make an order for consolidating them. 13. The applicant deposes that the seven cases he is facing stem from the same transaction. I find that there is a common question of law arising in all the criminal cases facing the applicant, being whether or not the bond terms granted to him should be reviewed at this stage and that the issue of whether or not the applicant obtained money from the complainants through false pretenses arises out of a series of transactions related to the same issue of a lease of some property. I am also satisfied that it is desirable to make an order for consolidation in order to address the issue of bond once in all the cases. 14. 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. As is relevant to this application, Section 123 provides that: 1. ....... 2. The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19636/eng@2025-12-23 3

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3. 15. 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. The law has not defined what excessive bail amount is but the same can be considered on a case by case basis. In the case of Ramadhan Iddi Ramadhan & 5 others v Republic [2019] eKLR the High Court made reference to the United States case of Stack v Boyle US 1.3.1951 in the Supreme Court of the United States of America where in defining what excessive bail terms means and which I find applicable in our jurisdiction: “ The court provided guidelines in assessing "whether bail is excessive starting from the premise that the traditional right to Freedom before conviction permits the unhampered preparations of a defence and serves to prevent the infliction of punishment prior to conviction. The court defined excessive as: Bail set at a figure higher than an amount reasonably calculated to assure the presence of the accused. Significantly, the court tied the question of whether a bail determination is excessive to the purpose of bail. As the court explained, the purpose of bail is to help assure the presence of the defendant at subsequent proceedings. Since the freedom of bail is limited, the filing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant." 16. I am persuaded to follow this decision and find that given the various charges facing the applicant, but the same arising out of a common transaction, fixing bond terms for each of them is going to make the terms excessive and out of his reach. Indeed, his continued stay in custody can only be explained on account of excessive bond terms that he has been unable to meet set for him in the various cases he is facing. 17. 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." 18. 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. 19. 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). 20. In the case of Andrew Young Otieno v Republic [2017] eKLR, Kimaru J said as follows with regard to review of bond terms for an accused person: “ This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining the bond terms to be imposed. In the present application, it was clear to this court that the Applicant was unable to raise the bond terms imposed by the trial Magistrate." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19636/eng@2025-12-23 4

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21. Furthermore, the Bond and Bail Policy Guidelines provide under guideline 4.26(c)(c) provides that where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms the court should call for a bail report to assist it on the appropriate terms to grant. 22. In the premises, I find that the prayer for review of bond terms in the application herein has merit. This court is inclined to review the bond terms. However, before appropriate terms are set, the court will call for a bail review report. This will also give the complainants an opportunity to state the views on the issue. 23. Consequently, this court calls for a Bail Review Report from the Probation and Aftercare Department. 24. Mention on 30th December 2025 at 11.30 am for the report and also further directions on prosecution of the remaining prayers for JR. 25. Orders accordingly. DATED, SIGNED AND DELIVERED ON THE COURT VIRTUAL PLATFORM, TEAMS THIS 23RD DAY OF DECEMBER, 2025. SIGNED BY/FOR: HON. JUSTICE ANDAYI W. F. THE JUDICIARY OF KENYA. KWALE HIGH COURT HIGH COURT DIV DATE: 2025-12-24 13:11:03 In the presence of: Seif (Ms) for the applicant. Ms Komu h/b for Vallerie for the 1st respondent. N/A for the 2nd respondent. N/A for the 3rd respondent. N/A for the Interested Parties. Ummu - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19636/eng@2025-12-23 5

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