Mutuvi v Republic (Criminal Revision E024 of 2026) [2026] KEHC 13040 (KLR) (21 August 2026) (Ruling) Neutral citation: [2026] KEHC 13040 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL REVISION E024 OF 2026 JN ONYIEGO, J AUGUST 21, 2026 BETWEEN NZOKA MUTUVI .................................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant herein was charged with the ofience 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 but the original lower court file disappeared. Since 2019, the file has never been traced thus hampering the hearing. 2. 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. 3. The court ordered that the appellant would be at liberty on condition that he signs a personal bond of Kshs. 500,000/= and avails one surety of Kshs. 500,000/= to ensure availability should he required to attend court in future whether for retrial or appeal. 4. The Applicant has now moved this court vide a Notice of Motion dated 10-6-2026 seeking review of the terms for his released 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. 5. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13040/eng@2026-08-21 1
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6. 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? 7. 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 Kshs. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13040/eng@2026-08-21 2
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