https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13021

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **HCCR.REV.NO.E025 OF 2026** JAMES KILAVI MBILO …………………………………………………APPLICANT VERSUS REPUBLIC……………………………………………………………..RESPONDENT **RULING** 1. The Applicant herein was charged with the offence of **Defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act**. He was subsequently convicted and sentenced to life imprisonment. Aggrieved by the conviction and sentence, he lodged an appeal before Machakos High Court vide Cr. Appeal Case Number 75 of 2012 whereupon a retrial was ordered. He was subsequently retried vide Makueni PMCR Case No. 812 of 2014 whereby he was again convicted and sentenced to life imprisonment. Once again, he applied for leave to appeal out of time vide Misc. Appl. No.189 of 2015 which was allowed and Appeal Number 31 of 2016 opened at Machakos High Court. When Makueni High Court was opened, the file was transferred from Machakos to Makueni and a new file Criminal Case No.266 of 2017 was opened. 2. Unfortunately, the appeal has never proceeded as the original lower court file could not be traced. Consequently, the court (Matheka J), ordered for parties to submit on the stalemate on non-availability of the lower court file. 3. The court nevertheless proceeded with the appeal and delivered its judgment on 10-11-2025 thus holding that; a retrial would not hold as the DPP did not have its original file. That an acquittal would not be appropriate at this stage. That the only available avenue is to release the Appellant on conditional release. 4. The court ordered that the Appellant would be at liberty on condition that he signs a personal bond of Kshs 500,000/= and avail two sureties of Kshs. 500,000/= each to ensure availability should he be required to attend court in future whether for retrial or appeal. 5. The Applicant has now moved this court vide a Notice of Motion dated 10-6-2026 seeking review of the terms for his release imposed by Hon. Matheka J in her a foresaid judgment. The Applicant avers that he is unable to meet those conditions set out due to financial limitations. He stated that, he is not a flight risk hence undertakes to avail himself at all material times. 6. In response, the prosecution left it to the court to decide. I have considered the application herein and parties’ sentiments. The only issue for determination is whether the application merits review. 7. The application herein is unique in the sense that the Applicant is already a convict whose appeal cannot proceed nor a retrial undertaken due to lack of the lower court file and the DPP’s file. The conditions set by the court were to secure the Applicant’s attendance should circumstances change i.e. if the two files are found. What will happen if they are not found nor is the Applicant not able to raise his surety bond. 8. It is trite that bail terms are meant to secure an accused person liberty on reasonable terms to ensure that such accused attends court. Are the terms imposed unreasonable? I do not think so. Whose mistake is it for the case not to proceed? Obviously, it is for the court to explain. However, the court is under obligation to balance justice. In view of the time it has taken to look for the missing files, accused’s liberty is compromised also. Since prosecution is not opposed to the application, I will review the bail terms imposed as follows; that the applicant be released on a personal bond of 500,000/= plus one surety of reputable standing for Kshs. 500,000/= using his or her Identity Card as security in default to remain in custody. Dated, signed and delivered virtually this **21st** day of **August 2026** .................................. **J. N. ONYIEGO** **JUDGE**