REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CRIMINAL APPLICATION NO. E130 OF 2026 ANTHONY MAINA KIPLAGAT…..………………………………APPLICANT VERSUS REPUBLIC………………………………………………………… RESPONDENT RULING 1. Before the trial court, the Applicant is charged with trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994, as amended by the Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022. He pleaded not guilty and was admitted to bond of Kshs. 50,000 or, in the alternative, cash bail of Kshs. 20,000. 2. On 10th March 2026, the Applicant failed to attend court, and a warrant of arrest was issued. He was again absent on 2 nd April 2026, although counsel informed the court that he was travelling from Oloitoktok. When he eventually appeared on 23 rd April 2026, he explained that his absence was occasioned by damage to his house caused by strong winds and illness, for which he produced a medical note. 3. The prosecution subsequently applied for cancellation of his bond upon learning that the Applicant had travelled to Doha, Qatar. In a ruling delivered on 26th May 2026, the trial court cancelled both the Applicant's bond. 4. Aggrieved by that decision, the Applicant filed the present application for revision on 24 th June 2026. He contends that he had consistently attended court, that the trial court was aware he Page 1 of 4
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worked abroad and had previously permitted him to travel for employment, and that he should not be penalised for any omission on the part of his advocate. Although the Respondent did not oppose the application, the Court is nonetheless obliged to determine whether the impugned order was lawful and proper. 5. I have considered the application and examined the record of the subordinate court. The issue for determination is whether the order cancelling the Applicant's bond calls for revision. 6. The right to bail or bond is guaranteed under Article 49(1)(h) of the Constitution, which provides: "An arrested person has the right... to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released." 7. Although bail or bond may be cancelled where compelling reasons subsequently arise, such cancellation cannot be undertaken arbitrarily. It must accord with the constitutional guarantee of a fair hearing. 8. Article 50(1) of the Constitution provides: "Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public appropriate, hearing another before independent a court and or, if impartial tribunal or body." 9. Equally, Article 50(2)(c) guarantees every accused person the right: "to have adequate time and facilities to prepare a defence." Page 2 of 4
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10. The record shows that upon the Applicant's absence on 10 th March 2026, the prosecution simultaneously sought the issuance of warrants of arrest and cancellation of bond. The trial court proceeded to entertain the application for cancellation without first according the Applicant an opportunity to respond to the allegations that he had absconded or deliberately left the jurisdiction. Whether his explanation was ultimately credible is beside the point. Before depriving him of his liberty and forfeiting the bail deposited, the court was under a duty to hear him. 11. The audi alteram partem rule is a cardinal principle of natural justice and an indispensable component of the constitutional right to a fair hearing. An accused person whose liberty is at stake must be afforded a reasonable opportunity to answer allegations that may lead to the cancellation of bail or bond. That safeguard was not observed in the present case. 12. This Court is therefore satisfied that the procedure adopted by the trial court fell short of the constitutional requirements of fairness. The Applicant ought to have been heard before the order cancelling his bond and cash bail was made. The impugned order cannot therefore stand. 13. Accordingly, the application for revision is allowed, and the orders of the trial court made on 26 th May 2026 are set aside. In their place, the Court orders: (i) The Applicant is admitted to cash bail of Kshs. 100,000. (ii) The Applicant shall deposit his passport with the Investigating Officer, who shall retain it in safe custody pending further orders of the trial court. Page 3 of 4
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(iii) A copy of this order shall be served upon the Director General of Immigration Services for the placement of an appropriate travel alert against the Applicant's passport. (iv) The Applicant shall not leave the jurisdiction of the trial court without its prior written permission from the trial court (v) The depositor or contact person shall provide a copy of their national identity card together with a passport-size photograph before the Applicant's release. Orders accordingly. Ruling dated and delivered virtually this 2 nd day of July 2026 _________________ D. KAVEDZA JUDGE Page 4 of 4
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