JUDGMENT
A93/2026 _15012026 / EC
2
variation of bail applications to show that circumstances
have materially changed since the condition was set.
The magistrate below, after a careful evaluation of
the evidence placed before them, considered that Mr Obiri
had not shown that there was a material change in his
circumstances between the time at which the bail condition
was set and the time that the application was heard before
the magistrate.
Mr Obiri now appeals to me against the magistrate’s
decision. The primary question before me is whether the
10
magistrate overlooked evidence of a material change in
circumstance s which would have justified the amendment of
the bail condition Mr Obiri wishes to be relaxed.
There was some suggestion that Mr Obiri’s business
affairs in Ghana require him to be permitted to travel there ,
and for that reason the relevant bail condition should be
relaxed. It is clear, however, that there has been no real
change in Mr Obiri’s business affairs in Ghana that would
justify the relaxation of the condition that he surrender his
passport. The court that set the bail condition knew about
20
Mr Obiri’s business dealings in Ghana and no change in the
nature of those dealings was identified before the
magistrate below.
T he bulk of Mr. Obiri’s case rested on the proposition
that Mr Obiri’s mother, an 82 -year -old woman, is gravely ill.
JUDGMENT
A93/2026 _15012026 / EC
3
The problem with that submission is that there was no
evidence before the magistrate below of Mr Obiri’s mother’s
medical condition , and no attempt to compare that medical
condition with the evidence adduced of Mr Obiri’s mother’s
condition before the bail court.
In other words, there was nothing before the
magistrate below that showed or tended to show that Mr
Obiri’s mother’s condition had deteriorated between the
point at which bail was granted and the point at which the
application for the variation of the bail condition was
10
brought.
I asked Mr Khoza, who appeared for Mr. Obiri, why no
evidence of Mr Obiri’s mother’s medical condition has been
adduced, whether before the magistrate below or before me.
Mr Khoza cited Mr Obiri’s mother’s right to medical
confidentiality .
There is no doubt that Ms. Obiri has such a right, but
that right does not extend as far as it would need to in order
to allow Mr Obiri to simply assert before me and the
magistrate below that his mother’s medical condition ha d
20
deteriorated . The onus is on Mr Obiri to adduce concrete
evidence of his mother’s condition that suggests that her
condition has changed since bail was granted .
While that position appears to have struck Mr Khoza
as unfair, it is what is required in cases of this nature. The
JUDGMENT
A93/2026 _15012026 / EC
4
magistrate below was correct to conclude that no
substantial evidence of Mr Obiri’s mother’s medical
condition had been placed before them . Still less had it
been demonstrated that Mr Obiri’s mother’s condition ha d
deteriorated since Mr. Obiri was directed to surrender his
passport .
Mr Khoza suggested that the fact that money has
been paid to a hospital by Mr Obiri on Ms. Obiri’s behalf is
evidence of Ms. Obiri’s medical condition and the
deterioration in it. That proposition only needs to be stated 10
to be rejected. The mere fact that money has been paid to
a hospital tells us nothing about the condition of a patient in
that hospital. The mere fact that Mr Obiri has paid money
to a hospital that treated his mother tells us nothing about
his mother’s overall medical condition.
I cannot detect either in Mr Khoza’s argument or on
the record any other basis on which it is suggested that
circumstances have changed such that the condition that Mr
Obiri surrender his passport should be relaxed or interfered
with in any way.
20
It follows that the magistrate’s conclusion that there
had been no material change in circumstance s that would
justify relaxation of the bail condition was correct. There is
no basis on which I can interfere with the magistrate’s
decision on appeal.