Ademus Muinde Maingi v Republic

2024 at [particulars withheld] in Lunga Lunga Sub-County of Kwale County by intentionally and unlawfully attempting to penetrate cause his penis to penetrate the vagina of VMM. He is charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the SOA that at the same time and place as in the principal charge, he touched the breasts of the same complainant. 4. In the supporting affidavit the applicant deposes that he was granted bail/bond in the sum of Kshs 300,000/= with no surety (I believe with a surety) of a similar amount. He is currently in remand custody at Kwale GK Prison. He deposes that the bond terms are excessive and beyond his financial means, given his economic status as a farmer. He is therefore unable to raise the bond/bail terms that were granted to him. He would however be able to afford lower cash bail. 5. He deposes that the lower court failed to consider his personal circumstances in fixing the bond/ bail terms contrary to Article 49(1)(h) of the Constitution which stipulates that bond/bail terms be affordable and reasonable. 6. He deposes further that he is a law abiding citizen with strong community ties. He resides at Lunga Lunga with his family and he has no intention of absconding trial. He has expressed his willingness to abide by reasonable bail terms he may be granted including reporting to the Police Station or Court as directed. 7. There were no submissions made by the applicant in respect of the application. The learned court prosecutor for the respondent herein informed the court that she thought the bond terms granted were commensurate to the charges. 8. I have considered the application, the grounds in support thereof and the supporting affidavit. The issue for determination is whether or not this court should exercise the revisionary powers to review the bond terms set for the applicant by the trial court downwards. 9. Article 165(6) and (7) of the Constitution provides for the supervisory jurisdiction of the High Court as follows: 10. 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. 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." 11. 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 maya. in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4542/eng@2026-01-29 2

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12. b. in the case of any other order other than an order of acquittal, alter or reverse the order. c. ... Under section 123(3) CPC, the High Court is vested with the authority to admit an accused person to bail and also to reduce the terms set by a Magistrate's Court or by a Police Officer. There is no procedure provided for under that section on how an accused or even arrested person can approach the High Court in that regard. Perhaps that is meant to underscore the simplicity of procedure for such processes as review of bond terms. This principle in law, often referred to as the doctrine of "procedural simplicity" or the, "handmaid of justice" rule, dictates that where a statute creates a right or obligation but fails to provide a specific procedure for enforcement, the court should adopt the simplest and least technical procedure to ensure justice is served. This principle was stated by Collins MR, sitting at the King"s Bench Division in the case of In re Coles and Ravenshear [1907] 1 KB 1, 4 as follows; “ Although I agree that a court cannot conduct its business without a code of procedure, I think that the relation of the rules of practice to the work of justice is intended to be that of a handmaid rather than mistress, and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in a particular case." 13. The principle was brought home by Hancox, JA (as he then was) in the case of Samuel Mbugua Githere v Kimungu [1984] KECA 51 (KLR) when he stated that: “ ... remembering that the relation of rules of practice to the administration of justice is intended to be that of a handmaid rather than a mistress, and that the court should not be so far bound and tied by the rules, which are intended as general rules of procedures, as to be compelled to do that which will cause injustice in a particular case." 14. In my understanding this means that where rules of procedure are provided, they should not be a hindrance to the administration of substantive justice just as where there are none provided none the court should not be constrained by lack of them not to determine the substance of the matter and the simplest of the procedures should be adopted. So that in a situation like the present case, even a letter to the High Court or an application by way of a miscellaneous application by way of chamber summons for revision should suffice. The present application by way of notice of motion is still fine. 15. The High Court in exercising its revisionary jurisdiction calls for the magistrate's court file and examines it 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 the case of review of bond, the court will proceed under section 123 CPC. 16. The trial court record shows that the applicant herein took plea before the trial court on 11th November 2024. As stated above, the proceedings of that day are not on the trial court file. However, in his present application the applicant deposes that he was granted bond of Kshs 300,000/= with a surety of a similar amount but no alternative of cash bail. 17. There is no dispute that the setting of bond terms is at the discretion of the trial court. However, as stated above section 123(2) CPC has given the High Court the power to admit an accused person who is before the magistrate's court to bail and to reduce the bond terms if set by the trial court or a Police Officer. Section 123 provides that: 1. ........... https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4542/eng@2026-01-29 3

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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. 18. In the present case, the applicant was granted bond by the trial court. However, he has remained in custody to-date. That makes it apparent that he is unable to raise the bond terms fixed by the court. He deposes that the trial court failed to take into account his personal circumstances being his financial means and economic status as a farmer. I am unable to determine whether in fact he brought such information to the attention of the trial court, seeing that this court does not have the benefit of the proceedings in which the bond terms were set. However, his continued stay in custody can only be explained on account of the fact that the bond terms set for him by the trial court were beyond his reach. 19. I note from the proceedings that the applicant asked for a review of his bond terms on what I suppose was the first date of mention of the case after plea on 4th December 2024. The trial court called for a PBR (Pre-bail Report) (should be a Bail Report). The same was provided on 18th December 2024 and it indicated that the accused is a family man and he depends on rain fed farming and rearing of cattle as his main source of livelihood but he sometimes does casual jobs to supplement his income. The Report further indicated that the applicant comprehended the magnitude of the offence facing him. 20. The views of the victim's mother were that she was objecting to the applicant being released on bond released on bond because she feared he may intimidate or harass the victim. She also feared for their security because they live alone in the house because she is a single mother. She therefore was pleading with the court to consider her plea of testifying first before the applicant could be is released. 21. The Area Chief gave a positive report about the conduct of the applicant. He stated that, he tried to dig more information from various sources and they responded that, the applicant is a respectable family man who is known to be a staunch Catholic believer. The Chief also said that, he was not objecting to the offender being released on bond/bail because he is not a security threat and also not a flight risk because he has a fixed abode. 22. The applicant's family pleaded for him to be released on reasonable cash bail stating that they were unable to get security such as a title deed or log book. 23. The trial court considered the Report. The learned prosecution counsel submitted thereon that the court should withhold reviewing the bond terms until the complainant testified. The court indicated that it considered the bond terms reasonable and that further consideration of the issue would be made afterwards, perhaps alluding to the plea by the alleged victim's mother and the prosecution counsel that the terms could be reviewed after the complainant had testified. 24. On 19th March 2025, after the alleged victim has testified on 3rd February 2025, the applicant renewed his plea for the bond terms to be reviewed. The learned prosecution counsel changed her tune and submitted that due to the nature of the charge she felt the bond terms were reasonable. The court agreed with her stating that given the charges, the bond terms were reasonable. 25. On 26th May 2025, after the complainant's mother had testified, the applicant again applied for a review of the bond terms. The trial court does not seem to have addressed that application. 26. The law has not defined what excessive bail amount is and the same will be considered on a case by case basis. In the 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4542/eng@2026-01-29 4

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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." 27. 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). 28. 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." 29. I am persuaded to follow the foregoing decisions and find each case must be considered on its own merits considering all the circumstances of the case because it is not obvious that where an accused person is financially unable to raise the bond terms set, the trial court or this court will review the bond terms. The ability of an accused person to meet the bond terms is an important factor to consider but not the only one. It must be considered alongside various other factors. Some cases may be straight forward while others raise complex issues that need careful consideration. The present case is not complex. 30. In the present case, the fears of interference with witnesses by way of harming them were not substantiated at all. There was no indication that the applicant had the means or the propensity to do so. The area chief who is in charge of security in the area expressed his views that the applicant was not a security threat to the complainants. That should have allayed the fears expressed by the complainants. Further the alleged victim's mother had stated that they requested to testify first before the applicant could be released on bond. Both the alleged victim and her mother had testified by 26th May 2025 but the applicant's bond terms were still not reviewed by the trial court despite him making applications for review. 31. I find from the foregoing that learned trial magistrate fell in error in failing to review the bond terms of the applicant because circumstances were clear that he was not a flight risk and neither was he a threat to the complainants. Even after the two had testified, the trial court failed to give attention to the applicant's further application to have his bond terms reviewed. It is apparent that in his circumstances the terms granted earlier were excessive such that the applicant was unable to meet them. The second https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4542/eng@2026-01-29 5

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error the trial court fell in was failing to fix the cash bail terms which the applicant felt that he could afford, rather than bond with a surety. 32. In the premises, I find that the application herein has merit. In terms of section 123(3) CPC, and in furtherance of the Hon. the Chief Justice's directions on decongestion of prisons dated 19th August 2024, this court reviews the bond terms set for the applicant by the trial court to Kshs 200,000/= with one surety of a like sum or cash bail of Kshs 100,000/= with two contact persons who will not offer security but will be examined by the Deputy Registrar for their suitability to be contact persons. Where the applicant presents a surety, the Deputy Registrar of this Court will proceed to examine the said surety for suitability to secure the attendance of the applicant at trial. Considering the period the applicant has remained in custody, verification of the documents for authenticity shall be done by the Investigating Officer within 3 days of presentation failure to which the same shall be done after the approval process of the surety. 33. Orders accordingly. RULING DATED AND SIGNED AND TO BE TRANSMITTED TO KWALE PRISON WHERE THE APPLICANT IS IN REMAND CUSTODY THIS 29TH DAY OF JANUARY, 2026. HON. JUSTICE ANDAYI W. F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4542/eng@2026-01-29 6

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