Gideon Nyanturu & 1 other v Republic

evidence being received or an opportunity being afforded to him to respond. He contends that the procedure adopted violated his constitutional right to a fair hearing and invites this Court to exercise its supervisory and revisionary jurisdiction. 3. The application was opposed by learned Prosecution Counsel, Mr. Chirchir, who submitted that the trial court took into account the allegations made against the Applicant before cancelling his bond. Counsel maintained that the learned trial magistrate properly exercised her discretion and urged the Court to decline the invitation to interfere with the impugned order. 4. The application, the supporting affidavit, the annexed proceedings and order of the subordinate court have been considered. 5. Sections 362 and 364 of the Criminal Procedure Code empower the High Court to examine the record of a subordinate court in order to satisfy itself as to the correctness, legality and propriety of any finding, sentence or order, as well as the regularity of the proceedings. Article 165(6) of the Constitution further vests the Court with supervisory jurisdiction over subordinate courts. Where the record reveals a material procedural irregularity or an

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infringement of constitutional rights, the Court is obliged to intervene. 6. The record reveal that on 20th April 2026 after the prosecution had closed its case, the complainant informed the trial court that the Applicant had continued threatening and harassing her. Upon hearing those allegations, the learned trial magistrate cancelled the Applicant's bond and directed that he remain in custody until the case was determined. 7. The proceedings do not disclose that evidence was received to establish the alleged breach of the Applicant's bond terms or that any inquiry was undertaken before the impugned order was made. They equally do not show that the Applicant was afforded an opportunity to answer the allegations before his bond was cancelled. 8. The cancellation of bond is a serious limitation of an accused person's liberty. Although a trial court has discretion to revoke bond where compelling reasons exist or where its terms have been breached, that discretion must be exercised judicially and consistently with the Constitution. The right to a fair hearing requires that an accused person be informed of the allegations against him and be afforded an opportunity to respond before an adverse order is made.

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9. In JMK v MWM & Another [2015] KECA 524 (KLR), the Court of Appeal, citing Mbaki & Others v Macharia & Another (2005) 2 EA 206, stated: "The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard." 10. Likewise, in Onyango v Attorney General (1986– 1989) EA 456, the Court held that a decision reached in breach of the rules of natural justice cannot be sustained merely because the same result might ultimately have been reached. Observance of the right to be heard is therefore an indispensable requirement of a fair judicial process. 11. Measured against those principles, the procedure adopted by the trial court did not satisfy the requirements of procedural fairness. The Applicant was condemned on allegations that he had no opportunity to answer before the order cancelling his bond was made. 12. The order made on 20th April 2026 was therefore procedurally irregular, violated the Applicant's right to a fair hearing and is amenable to revision under sections 362 and 364 of the Criminal Procedure Code.

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13. Having examined the proceedings against the applicable constitutional and legal principles, I am satisfied that the order made on 20th April 2026 cancelling the Applicant's bond was reached through a procedurally unfair process. The order cannot therefore stand and is amenable to revision under sections 362 and 364 of the Criminal Procedure Code. 14. The Notice of Motion dated 30th April 2026 is merited and is hereby allowed in the following terms: 1) The order made by the Keroka MCCR E375 of 2023 on 20th April 2026 cancelling the Applicant's bond is hereby set aside. 2) The Applicant's bond terms as previously granted before the impugned order are hereby reinstated. 3) The trial court shall proceed with the hearing and determination of the criminal case in accordance with the law. DELIVERED AT NYAMIRA THIS July 2026 WAMAE.T. W. CHERERE JUDGE Appearances 30th DAY OF

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Court Assistant Applicant - Anita - Present For Applicant - Mr.Masolo Advocate For the DPP - Mr. Chirchir (SADPP)

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