https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6988

Mbuthia v Republic (Anti-Corruption and Economic Crimes Appeal E007 of 2025) [2026] KEHC 6988 (KLR) (Anti-Corruption and Economic Crimes) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6988 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Anti-Corruption and Economic Crimes Appeal E007 of 2025 REA Ougo, J May 21, 2026 Between Charles Chege Mbuthia Appellant and Republic Respondent Ruling 1.By application dated 11th March 2026, the appellant has invoked the provisions of Articles 23, 27, 28, 29, 49 (1) (h), 50 (2) (q) and 159 (2) of the Constitution, as well as sections 356 & 379 of the Criminal Procedure Code, seeking the following reliefs:1.… Spent;2.That this Honourable Court be pleased to review the applicant’s bond pending appeal in the interest of justice pending the hearing and determination of the substantive appeal;3.That this Court be pleased to consider the change in circumstances following the initial application for bond pending appeal which has necessitated this review application in the interest of justice;4.That this Honourable Court be pleased to issue any other orders it deems fair and just in the circumstances. 2.The application is supported by the grounds set out in the application, together with the applicant’s supporting affidavit, sworn on 11th March 2026. A summary of the facts set out therein is that the applicant, jointly with others, was charged with several counts of procurement and corruption-related offences in Anti-Corruption case no. 22 of 2019. After a full hearing, the applicant was convicted on four counts and, on 13th February 2025, sentenced to a total of 11 years’ imprisonment. It is those findings that have triggered this appeal. 3.The applicant contends that he previously filed an application for bail pending appeal. However, that application was dismissed because no compelling and exceptional circumstances were demonstrated. Thereafter, the court directed that the appeal be heard within two months, effective March 2025. The applicant is apprehensive that the appeal will not be heard and determined expeditiously, as no steps have been taken to prosecute it 10 months later. He further notes that the appeal has yet to be concluded due to numerous interlocutory applications. 4.The applicant urged this court to allow the application for the following reasons: his appeal is weighty, as the additional evidence that this court allowed him to adduce points towards his exoneration; the punitive sentences imposed by the trial court are unlawful, unjustifiable and not provided for in statute; he prefers a sentence in the nature of fines; he suffers from Type II Chronic Diabetes that has been uncontrollable for the past year; as a result of that illness, he is apprehensive that complications may arise, leading to multiple organ failure; he is neither a threat to any of the witnesses nor a flight risk; he is ready to comply with the bond terms set out by this court; he is the sole breadwinner of his family; he was admitted to bond at trial and complied with the conditions therein; his co-appellants have had their applications for bond pending appeal on favourable terms; no prejudice would be suffered by the respondent, but he is likely to suffer prejudice if the orders sought are denied; and it is in the interests of justice that the application be allowed as prayed. 5.The respondent opposed the application. It relied on the replying affidavit of Faith Mwila, a Principal Prosecution Counsel, sworn on 13th April 2026. The deponent set out the background facts giving rise to this appeal, pointing out that the applicant was unsuccessful in his antecedent application for bail pending appeal dated 17th February 2025. That he subsequently filed an application dated 16th June 2025 for admission of bail/bond terms. However, that application was similarly dismissed. 6.It was deposed by the respondent that the order dated 3rd March 2025 was issued after full consideration, that the applicant now seeks to review, the court considered the applicant’s circumstances, such as the fact that he is a sole breadwinner. On the medical condition deposed by the applicant, it was the respondent’s view that, since no medical evidence was adduced, those allegations could not be verified. Section 39 of the Prisons Act vests prison authorities with the responsibility of providing adequate medical care. Thus, the ground for review of bail pending appeal on account of his medical condition was not substantiated. 7.Regarding the delay in prosecuting this appeal, the deponent deposed that the applicant was estopped from complaining, as he contributed to the delay by filing multiple applications dated 16th June 2025, 8th July 2025, 3rd September 2025 and 2nd December 2025, and by disobedience of court orders. Furthermore, although directions regarding the disposal of the appeal were given, the applicant has failed to comply with those directions, as he has not filed his written submissions. The delay was thus attributed to the applicant, not to the respondent or the court. 8.The respondent further mentioned that on 17th September 2025, the court directed the parties to expeditiously dispose of the appeal within the next 120 days by filing their respective written submissions. However, despite this court’s directions and its deliberate intent to dispose of the appeal efficiently, the applicant continues to disobey those orders. He cannot therefore benefit from his own wrongdoing. Be that as it may, the respondent observed that the appeal was scheduled to be mentioned on 14th April 2026 to take a judgment date. In view of the foregoing, the respondent urged this court to dismiss the application, as no exceptional circumstances were demonstrated. 9.The applicant filed a supplementary affidavit sworn on 23rd April 2026. He clarified that he had filed only one application for bail pending appeal. The other application, referred to by the respondent, was filed by his co-appellant. He annexed a letter from the medical officer in charge, dated 16th April 2026, to show that he was unwell. He added that his condition continued to deteriorate. Regarding his failure to comply with court directions, he explained that those averments were overtaken by the fresh directions of the court given on 14th April 2026. He joined issues with his application, urging this court to allow the prayers sought. 10.The application was canvassed by way of written submissions. The applicant filed written submissions dated 23rd April 2026. He cited section 356 of the Criminal Procedure Code and Article 49 (1) (h) of the Constitution, as well as several decisions of the court, to submit that, based on the averments set out in his application and the supporting and supplementary affidavits, he had demonstrated exceptional circumstances warranting a review of his previous application for bail pending appeal. He prayed that his application be allowed. 11.The respondent filed written submissions, together with a list and bundle of authorities, both dated 28th April 2026, to submit that, first, the applicant had not demonstrated any new, compelling circumstances warranting a review of the orders issued on 3rd March 2025. Second, the grounds set out by the applicant did not furnish sufficient grounds to demonstrate compelling reasons for the grant of bail pending appeal. It prayed that the application be dismissed. Analysis And Determination 12.I have considered the application, the affidavits in response and opposition, the rival written submissions, and the law. The applicant seeks to review his most recent application for bail pending review, on the ground that circumstances changed following the dismissal of that application. The court in Republic vs. Diana Suleiman Said & another [2014] KEHC 3724 (KLR) explained the change in circumstances test as follows:“The changed circumstances test is one of common sense that where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances changed in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused.” 13.Setting out the compelling reasons that have arisen, the applicant prayed that the application be allowed for the following reasons, inter alia: the delay in the prosecution of the appeal; his appeal was weighty, as the additional evidence that this court allowed him to adduce points towards his exoneration; and he suffers from Chronic Diabetes Type II, which has been uncontrollable for the past year. 14.In response to that application, the respondent deposed that the appeal was delayed on account of the applicant herein. Indeed, a perusal of the proceedings herein reveals that the applicant has filed five applications, including this one. He first filed an application dated 17th February 2025 seeking a bond pending appeal. A ruling was delivered on 3rd March 2025 dismissing that application. Thereafter, the applicant filed another application for a bond pending appeal dated 16th June 2025. It was dismissed on 1st October 2025. The applicant thereafter, by application dated 8th July 2025, sought leave to have his memorandum of appeal amended. In his application dated 3rd December 2025, the applicant sought leave to adduce additional evidence. That application was allowed on 5th March 2026. 15.These applications were filed at the applicant's instigation. The applicant stated that in March 2025 the court directed that the appeal be heard within two months. However, that did not happen by the time the present application was filed. It is instructive to note that during that intervening period, it was the applicant who moved the court with several applications, leading to a delay in the prosecution of the appeal. 16.Further, at the time of filing this application, the applicant had not yet filed his written submissions canvassing the substantive appeal. He then sought to justify the discharge of previous orders on the basis of fresh orders dated 14th April 2026. In my view, the applicant is to blame for the delay in prosecuting the appeal. He cannot purport to approbate and reprobate when he was the author of this apparent delay. 17.Another justification for reviewing the application for bail set out by the applicant is that he suffers from Chronic Diabetes Type II that has been uncontrolled for the past year. He is apprehensive that complications would arise, leading to multiple failures. However, in his application dated 16th June 2025, which is the subject of the current review, the applicant did not raise any claims of health-related problems. Having stated that he suffered from a chronic illness, this would certainly have been an issue addressed at the earliest opportunity. 18.In addition, when the respondent observed that the applicant did not substantiate his allegations of a chronic disease in his replying affidavit, the applicant, in my view, attached a letter dated 16th April 2026 to corroborate his allegations. In my view, given the date of that letter, this was an afterthought. 19.Be that as it may, even if this court were to consider the purported medical report, it is evident that the applicant was diagnosed in 2012, which brings me back to the question of whether this ground was raised in good faith. Additionally, there are no screening reports or test results to support those allegations. I am therefore not persuaded that the ground raised, on medical grounds, sufficiently explains the changes in circumstances. 20.The applicant also contends that he was granted leave to adduce additional evidence pointing towards his exoneration. At this stage of the proceedings, the court cannot establish the veracity of the evidence that has been adduced. The court only allowed the application to file additional evidence. That finding was not tantamount to a tilt towards his innocence. Thus, at this juncture, I cannot ascertain that the evidence is merited, without it being interrogated, and that it points towards the applicant's innocence. It cannot therefore be a ground for granting the application. 21.The other grounds raised by the applicant do not demonstrate a change in circumstances. However, this court confirms that they were properly considered previously. For those reasons, I find that the applicant’s Notice of Motion is without merit. It is accordingly dismissed. I further reiterate that parties should be intentional in disposing of the substantive appeal so that it is expeditiously determined and to avoid interlocutory applications altogether. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of:Mr. Mutinda -For the Applicant/ AppellantMs Mwila For the RespondentAdan C/A