1.By a letter dated 5/9/2023 written by M/S Kitheka & Ouma Advocates, the applicant who is the accused in Meru Chief Magistrate’s Court Criminal Case No. E/201/2023 seeks revision of the terms of bail granted to him by the trial court in as follows:
2.Of the 12 criminal charges related to fraudulent obtaining faced by the accused, Count No. I on obtaining by false pretence c/s 313 of the Penal Code gives the value of the amount allegedly stolen as Ksh.49,448,000/- as follows:
3.The revision of the bail terms was opposed by the complainant in the criminal case Meru Chief Magistrate’s Court Criminal Case No. E/201/2023 who filed a Replying Affidavit sworn on 15/9/2023 urging that the applicant is a flight risk as follows:
4.The DPP opposed the application for revision by way of Grounds of Opposition dated 11/10/2023as follows:
5.The Court then heard oral arguments of the Counsel for the Prosecution, the accused and the complainant in proceedings of 16/10/2023 set out below and ruling was reserved:
6.At the outset, the Court would readily agree with the Counsel for the DPP that (1) this is not a neat and proper case of calling for revisionary powers under section 362 of the Criminal Procedure Code as framed by the Counsel for the applicant, and (2) that new issues not taken before a trial court may not be raised in an application for revision of its order. It is properly the province of a review application before the same trial court on the ground say of discovery of new material.
7.However, on a question of bail, a Notice of Motion for review of bail terms by the trial court or the appellate in accordance with provisions on bail would be sufficient. Although it may also involve questions 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 any such subordinate court”, as contemplated in section 362 of the Criminal Procedure Code, bail provisions are self-contained to tackle any matter arising from the order of the trial court, without invoking the supervisory jurisdiction.
8.However, the Court has crisp review jurisdiction under section 123 (3) of the Criminal Procedure Code, which provides for the procedure for review of bail terms as follows:
Issue for determination
9.The question before the court is whether the court will interfere with the discretion of the trial court in granting bail in the circumstances of this case.
10.As in all judicial discretion of a trial court, the appellate court is only entitled to interfere with the discretion of the trial judge or magistrate in the circumstances set by the Court of Appeal in the civil case of Mbogo v. Shah (1968) EA 93 as follows:
The trial court orders on bail
11.The Order on bail by the trial court made on 5/9/2023 is in the following specific terms:
12.The trial court herein clearly pegged the bail terms on the amount of money allegedly stolen by the accused as charged at Ksh.49,448,000/-.
13.The opposition to the revision of the bail terms by the complainant is clearly and attempt to challenge the order on bail in the statement that the accused is a flight risk. If the trial court had thought the accused to be a flight risk, it would not have granted bail as that is a compelling reason to refuse bail. From the trial court record, the court in its ruling on bail properly rejected a submission based on the serious charges against the accused and said:
14.It is in ordering an excessive term of the bond that the court faults the trial court. The grant of bail is meant to ensure that the accused is released to attend his trial when required by the court. The terms are not meant to be an indirect denial of bail: bail terms that are so high as to amount to a denial of bail are wrong. In assessing the amount of bond or cash bail to grant, the court must examine the accused to see what amount is appropriate given the financial ability of the accused. To only consider the amount or value of the property allegedly stolen or subject of the offence is to err by failing to make an order for bail which suits the particular accused person before the court. This court has considered the record of the trial court at the bail hearing and no indication that the court considered the circumstances and means of the accused to meet the bail terms.
15.With respect, this court is content to restate the statement of the Court in Cyril Kipruto Serem v Republic  eKLR as to the meaning of reasonable terms of bail in section 123(2) of the Criminal Procedure Code, as follows:
16.This Court considers that, in the excessiveness of the bail terms herein, there is justification to interfere with the discretion of the trial court to decide the bail terms.
17.Accordingly, for the reasons set out above, the Court makes the following orders:1.The terms of bail granted by the trial court in Meru Chief Magistrate’s Court Criminal Case No. E/201/2023 by its Order of 5/9/2023 are hereby reviewed.2.Order No. 1. of the said Order on Bail to the effect that the accused is to be released on bond of Kshs.10,000,0001= (10 million) with a surety of similar amount, is set aside.3.The Accused may be released on a Bond of Ksh.2,000,000/- with one (1) surety, or Ksh.1,000,000/- with two (2) sureties, of the same amount.4.All the other terms of the bail order remain the same.
18.There shall be no order as to costs.Order accordingly.