https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11673

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. HCCRA/ E056 OF 2026** **BETWEEN** 1. **SARAH WANGUI KAMAU** 2. **MARY MUNYIVA KAMAU** 3. **MAKEGRA SUPPLIES LIMITED** 4. **STEPHEN MUTUA NGUNZI** 5. **KILINGI INVESTMENT COMPANY LIMITED** 6. **LUCY WANJUGU KIBOGO** 7. **JAHAZI INVESTMENT COMPANY LIMITED** 8. **ZOHALI SERVICES LIMITED.......................... APPELLANTS/APPLICANTS** **VERSUS** **REPUBLIC .................................................................................................. RESPONDENT** **RULING** **A. INTRODUCTION & BACKGROUND** 1. The Appellants/Applicants were charged and convicted in Malindi Chief Magistrate’s Court Anti-Corruption Case No./1/2019. 2. By the Judgment delivered on 17th April, 2026, and a subsequent sentence delivered on 26th May, 2026, the trial court convicted the Applicants and sentenced them to serve custodial terms alongside substantial fines. 3. Specifically, the lower court meted out the following penalties and sentences against the corporate and individual appellants; 4. Accused 11 (Sarah Wangui Kamau). 5. : Fined Kshs. 500,000/= in default 12 months imprisonment plus a further mandatory sentence of Kshs. 14,461.83/= for the benefit in default to serve 2 years imprisonment on Count 13; fined Kshs. 500,000/= in default 12 months imprisonment (noting that under this charge the money was recovered and no benefit was earned) on Count 14; and fined Kshs. 2,000,000/= in default 20 months imprisonment on Count 29. 6. Accused 13 (Mary Munyiva Kamau): Fined Kshs. 500,000/= in default 12 months imprisonment plus an additional mandatory fine of Kshs. 14,238,440/= in default 2 years imprisonment on Count 17; fined Kshs. 500,000/= in default 12 months imprisonment plus an additional mandatory fine of Kshs. 6,487,916/= for the benefit derived from the crime in default 2 years imprisonment on Count 18; fined Kshs. 200,000/= in default 12 months imprisonment on Count 19; fined Kshs. 200,000/= in default 12 months imprisonment on Count 20; fined Kshs. 200,000/= in default 12 months imprisonment on Count 21; fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 33; and fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 34. 7. Accused 14 (Makegra Supplies Limited): Fined Kshs. 500,000/= in default 12 months imprisonment plus an additional mandatory sentence of Kshs. 14,238,440/= for the gain in default 2 years imprisonment on Count 17; fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory fine of Kshs. 6,487,916/= for the benefit in default 2 years imprisonment on Count 18; fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 33; and fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 34 (with Accused 13 acting as Director). 8. Accused 15 (Stephen Mutua Nguzi): Fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory fine of Kshs. 13,401,904/= in default 2 years imprisonment on Count 22; fined Kshs. 200,000/= in default 12 months imprisonment on Count 23; fined Kshs. 200,000/= in default 12 months imprisonment on Count 24; and fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 35. 9. Accused 16 (Kilingi Investment Company Limited): Fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory fine of Kshs. 13,401,904/= for the benefit acquired in default 2 years imprisonment on Count 22; and fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 35 (with Accused 15 acting as Director). 10. Accused 19 (Lucy Wanjugu Kibogo): Fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory sentence of Kshs. 13,401,904/= in default 2 years imprisonment on Count 15; fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory fine of Kshs. 7,680,250/= in default 2 years imprisonment on Count 16; fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory sentence of Kshs. 12,205,900/= in default 2 years imprisonment on Count 28; fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 37; fined Kshs. 500,000/= in default 18 months imprisonment on Count 38; fined Kshs. 500,000/= in default 18 months imprisonment on Count 39; and fined Kshs. 500,000/= in default 18 months imprisonment on Count 40. 11. Accused 20 (Jahazi Investment Company Limited): Fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory additional sentence of Kshs. 12,205,900/= in default 2 years imprisonment on Count 28; fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 37; and fined Kshs. 500,000/= in default 18 months imprisonment on Count 40 (with Accused 19 acting as Director). 12. Accused 21 (Zohali Services Limited): Fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory sentence of Kshs. 10,781,040/= in default 2 years imprisonment on Count 15; fined Kshs. 500,000/= in default 12 months imprisonment plus a mandatory fine of Kshs. 7,680,250/= in default 2 years imprisonment on Count 16; fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 31; fined Kshs. 2,000,000/= in default 2 years imprisonment on Count 32; fined Kshs. 500,000/= in default 12 months imprisonment on Count 38; and fined Kshs. 500,000/= in default 12 months imprisonment on Count 39 (with Accused 19 acting as Director). **B. SUBMISSIONS BY PARTIES** **The present Application** 1. The Appellants/Applicants being aggrieved by the said conviction and sentence, the Applicants filed a Petition of Appeal and subsequently brought the Notice of Motion application dated 1st July, 2026, seeking orders for bail pending appeal and/or suspension of the execution of the sentences pursuant to Sections 357 and 354(3) of the Criminal Procedure Code and Articles 49, 50, and 165 of the Constitution. 2. **Submissions by the Appellants/Applicants** 3. Based on the amended petition of appeal and the written submissions provided in the application for bail pending appeal, the Appellants have raised several substantive legal and factual grounds that form the basis for arguing that their appeal has a strong probability of success. 4. The Appellants/Applicants submitted *inter alia;* 5. *That the trial court erred in law and fact by convicting them while simultaneously acquitting the primary government officials responsible for processing, approving, and authorizing the payments. They argue that because public funds can only be legally disbursed through these specific officials, the acquittal of the primary actors legally negates the foundational elements of conspiracy and unlawful acquisition.* 6. *The appeal challenges the integrity of the prosecution's evidence regarding the Integrated Funds Management Information System (IFMIS). The Appellants argue that the prosecution failed to prove the origin and manipulation of the system, establish a safe chain of custody, or account for digital audit trails that allegedly contained unsafe identification and alterations.* 7. *The Appellants assert that the trial court failed to properly evaluate evidence showing that government officials admitted to using colleagues' credentials to access and authorize payments through IFMIS. They argue this admission should have raised reasonable doubt as to who orchestrated the scheme and whether the Appellants had control over or knowledge of internal credential breaches.* 8. *The grounds state that the prosecution failed to prove the funds were illicitly generated by accounting officers to satisfy the underlying predicate offense, arguing that receiving funds for apparent goods or services cannot constitute money laundering without a proven underlying crime.* 9. *The Appellants argue that the trial magistrate erred in principle by imposing consecutive sentences without providing articulated reasoning as to why concurrent sentences were inappropriate, resulting in an aggregate sentence that is allegedly manifestly excessive, crushing*, *and disproportionate.* 10. *Further, the Appellants/Applicants highlight a legal oversight regarding the mandatory computation and deduction of the time spent in pre-trial custody from their aggregate sentences*. 11. The applicants submitted that these constitute triable and arguable grounds appeal that cannot be ignored and intent to demonstrate an arguable appeal with a strong probability of overturning the conviction. 12. **Submissions by the Respondent** 13. The respondent opposed the application vide grounds of opposition dated 08/07/2026. 14. The Respondent also filed submissions and averred that the application is incompetent, not merited and should be dismissed based on the following grounds: - 15. The appellants has not demonstrated exceptional or unusual circumstances that would lead the court to fairly conclude it's in the interest of justice to grant bail. 16. Ill health is not an exceptional circumstance for the court to grant bail pending appeal as there exists medical facilities in the prison that are well equipped to take care of the ill health of the appellants and if need arises the prisoners personnel may seek referral to other medical facilities outside the prison facility. No special report has been presented from the medical practitioners at the prison facility demonstrating they are incapable of treating the ailments the appellants’ are allegedly suffering from. 17. Right to bail pending appeal is not a guaranteed constitutional right. The appellants have lost their right of presumption of innocence under Article 50(2)(a) of the constitution after being sentenced to serve custodial sentences and condemned to pay severe mandatory fines. 18. This is a strong incentive for the appellants to abscond court. The fact that the appellants did not breach the bail conditions in the trial court is not an exceptional circumstance which can warrant admitting appellants to bail pending appeal. 19. Being a sole breadwinner for the family and any hardships if any facing the applicants’ family is not an exceptional circumstance which can warrant admitting appellants to bail pending appeal. 20. The burden of proof is upon the appellants to demonstrate that there is overwhelming probability that the appeal will succeed and the appellants have failed to do so. 21. The appellants/applicants have not raised substantial points of law with overwhelming chances of success to convince court there is an arguable point of law in the petition of appeal. 22. Respondent further submitted that the grounds of appeal raised by the appellants are general and contested by the respondent therefore require a full interrogation during the hearing of the appeal and do not disclose a prima facie merit to warrant release on bond pending appeal. 23. No evidence has been tendered to demonstrate that the appeal will not be heard within reasonable time or that a substantial portion of the sentence will be served before its determination. 24. The appellants have not demonstrated any violation of their constitutional rights to justify the orders sought considering that the sentence imposed is lawful and proportionate to the offence and does not warrant interference at this stage. 25. The applicants are serving sentence having been convicted by a properly constituted court. They have failed to give reasons why this court should set them at liberty by granting them bond pending appeal. 26. **ISSUES FOR DETERMINATION** 27. The principles governing the grant of bail pending appeal are well settled in Kenyan jurisprudence. Unlike bail pending trial where the right to liberty is safeguarded by the presumption of innocence under Article 49 of the Constitution, the structural paradigm shifts entirely upon conviction. 28. As established in ***Jivaji v. Republic [1972] EA 28*** and later reinforced in ***Somi v. Republic [2006] 1 KLR***, the Applicant must demonstrate either: 29. *That the appeal has overwhelming prospects of success; or* 30. *That there exist exceptional or unusual circumstances, such as a high probability that the sentence will be substantially served before the appeal can be heard.* 31. Having considered the Notice of Motion, the Grounds of Opposition, and the respective arguments, this Court filters the dispute into two distinct issues for determination: 32. ***Whether the main appeal discloses overwhelming chances of success.*** 33. ***Whether the Applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.*** 1. **LEGAL ANALYSIS** 2. ***Whether the main appeal discloses overwhelming chances of success.*** 3. On the issue of overwhelming prospects of success, a casual glance at the grounds of appeal on record reveals that they target the trial court’s factual assessment and statutory evaluation. 4. While these issues are undoubtedly arguable, they are highly contested by the Respondent and require a full, painstaking analysis of the lower court record. 5. At this interlocutory stage, this Court cannot prematurely try the main appeal. An arguable appeal is not synonymous with one possessing overwhelming chances of success. 6. Further, the mere filing of an appeal or the existence of a right of appeal does not automatically operate as a stay of sentence or confer an automatic entitlement to bail post conviction. 7. A person seeking bail pending appeal is no longer an accused person. The constitutional presumption of innocence has been spent. 8. Thus, without clear, persuasive evidence establishing the exceptional nature of the case or the unreasonableness of the custodial sentence pending determination, this court cannot move. 9. Further, due to the length of the sentences imposed herein, there is no risk of the appeal becoming nugatory. 10. ***Whether the Applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.*** 11. In the recent decision of ***Waititu Babayao v Republic* (Anti-Corruption and Economic Crimes Appeal E006 of 2025) [2025] KEHC 5678 (KLR),** the Court clearly stated that a conviction strips an individual of the constitutional shield found under Article 50(2)(a) of the Constitution of Kenya, meaning the presumption of innocence is entirely spent. 12. An applicant seeking to be released on bail pending appeal must place before the court sufficient, cogent, and compelling evidence demonstrating exceptional circumstances. 13. These typically include establishing that the appeal has overwhelming or solid chances of success, that the applicant is not a flight risk, and that specific exceptional hardships such as exceptional ill health or irreversible medical conditions that cannot be adequately managed within the correctional facility, or that the appeal would be rendered nugatory before it is heard exist. 14. The burden rests squarely on the applicant to discharge this threshold by placing tangible, verifiable material before the court. 15. In the present application, the Applicants have broadly cited grounds regarding their health status. However, it is a well established principle that generalized allegations of ill health or mere assertions of medical discomfort, unsupported by independent, contemporaneous, and certified medical reports from qualified specialists or prison medical authorities establishing that the condition is life threatening or incapable of management within the prison medical facilities, do not constitute an exceptional circumstance. 16. Vague claims of failing health, lacking probative clinical backing, cannot displace the high threshold required to grant bail post-conviction. 17. Upon careful evaluation of the application, the supporting affidavits, and the record presented, I find that the Applicants have failed to discharge this legal burden. Imprecise assertions and generalized claims of hardship are fundamentally inadequate. 18. **CONCLUSION & DISPOSITION** 19. Bail pending appeal is an exceptional, sparing remedy. It strictly demands the demonstration of substantial, unusual, or exceptional circumstances, rather than a mere continuation of pre-trial good behaviour. 20. The severity of the custodial sentences creates an overwhelming structural incentive for the applicant to abscond, completely eclipsing any history of past compliance. 21. The combination of lengthy imprisonment and multimillion-shilling fines inflicts an unsustainable physical and economic burden on a convict. 22. This reality effectively neutralizes any reasonable expectation that the applicants will voluntarily surrender to custody should the appeal fail. Consequently, exemplary conduct during the trial cannot mitigate or override this newly materialized, objective flight risk. 23. While this Court commends the Applicants previous discipline and meticulous compliance with bond terms during the trial phase, it remains settled law that post-conviction bail cannot be granted as reward for past compliance. 24. Accordingly, and for the reasons set out above, the Notice of Motion application dated 1st July, 2026, is hereby dismissed in its entirety. 25. Notwithstanding the dismissal of the application for bail pending appeal, this Court remains cognizant of the constitutional imperative under Article 159(2)(b) of the Constitution of Kenya, requiring justice to be administered without undue delay, as well as the overarching right to a fair and expeditious hearing under Article 50(2)(e). 26. To ensure that the substantive appeal is heard and determined without protracted delays, the following consequential directions are hereby issued: 27. The original records and typed proceedings from the trial court, shall be certified and formally placed in the court file within fourteen (14) days from the date hereof. 28. The Appellants/Applicants shall file and serve their comprehensive Record of Appeal within fourteen (14) days of the certification of the record. 29. The Appellants/Applicants shall file and serve their substantive written submissions in support of the Amended Petition of Appeal within Seven (7) days thereafter. 30. The Respondent (State) shall file and serve its opposing written submissions within Seven (7) days of service by the Appellants. 31. This matter shall be mentioned on 17th September, 2026, for compliance confirmation, highlighting of submissions, and allocation of a priority date for the delivery of the judgment on the main appeal. It is so ordered. **DATED AND DELIVERED AT MALINDI THIS 27TH DAY OF JULY, 2026.** **C.AKAIGWA** **JUDGE**