1.Before the court is an application for review of bail terms dated 26/9/2023 by the accused seeking specific reliefs as follows:
2.It is based on grounds set out in the application, as below, and supported by an affidavit thereon as follows:
3.In granting Bail to the accused upon plea on 14/9/2023, the Court (Gitari, J.) said:
4.The DPP opposed the application and filed grounds of opposition dated 13/10/2023 as follows:
5.On request by the Prosecution, the Prisons Department gave a non-committal letter dated 16/10/2023 on any medical need for release of the accused as follows:
6.Counsel then made oral submissions in support of their respective contentions set out in their pleadings. With respect, the DPP and the Prison authorities proceed on the matter as if they were trying to justify denial of bail for the accused indicating that the prison facilities are able to attend to medical conditions similar and more complex to that of the accused herein. That is not the point.
7.The accused herein has already been granted bail upon a finding that the Prosecution did not place any compelling reasons before the court. To refuse to review bail on the ground that the Prison authority has facility to attend to the accused’s ailment is to refuse bail when the court has previously found no compelling reason for denial of bail.
8.In the respectful view of this court, while not hearing an appeal from the terms of the order on bail by the Court of equal jurisdiction, the court has jurisdiction and discretion, in the same manner as when previously constituted, to consider an application for review on the grounds of the accused’s inability to meet the conditions of bail. The court does not sit on appeal and find that the terms of bail are excessive, as urged by the counsel for the accused, but on review whether, by reason of the bail terms and the circumstances of the accused, the intention of the court that the accused be released on bail cannot be effected because he cannot meet the terms.
9.A court does not grant bail terms so that the accused may not be able to meet them, as that would amount to a refusal of bail. The court intended that the accused should be released on bail there being no compelling reasons to deny him bail. If there is evidence, as here, that the accused is not able to meet the bail terms, there is justification for review of the bail terms. It is immaterial whether the accused suffers an ailment that the Prison authorities are quite able to treat.
10.To the end that the Court’s order for the release on bail of the accused is realised, the Court will revise the terms of bail to a bond of Ksh.200,000/- with one (1) surety of the same amount. The Court does not make any provision for Cash bail.Order accordingly,