REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL APPEAL NO E084 OF 2025
(Appeal from the Judgment of Hon. Stephen Jalangó (SPM) Tawa delivered on 11/11/2025)
KENNEDY KAUNDA MWAMBI ……………………………. APPELLANT
VERSUS
REPUBLIC……………………………………….………….… RESPONDENT
RULING
1. Before me is the Notice of Motion dated 11/12/2025 brought under Section 123 (2) and (3) and 357 (1) of the Criminal Procedure Code .
2. It seeks orders that the Applicant be admitted to bail pending the hearing and determination of his appeal.
3. The Appellant was charged with Defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act , and in the alternative Indecent Act with a child Contrary to Section 11 (1 ) of the same Act .
4. After a full trial the court on 11/11/2025, found the Applicant guilty of defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act.
5. After considering the Pre-Sentence Report, the mitigation by the Applicant and the victim’s witness statement, the trial court sentenced the Applicant to 5 years’ imprisonment.
6. For bail pending appeal an Applicant has to establish grounds for the application; exceptional circumstances including that the appeal has overwhelming chances of success; that the Appellant may serve the whole or most of his sentence before the appeal is heard and determined.
7. The application was argued verbally by Ms. Kabuu for the Applicant and opposed by Mr. Musyoki for the State.
8. Ms. Kabuu argued that the appeal has high chances of success. From her supporting affidavit of the application, she endeavored to demonstrate the weaknesses in the case before the subordinate court. Furthermore, she submits that the Applicant has a young family that depends on him.
9. The application is opposed on the grounds that no exceptional circumstances have been set out and that the Applicant does not enjoy the presumption of innocence he did before the conviction hence bail pending appeal is not an unlimited right.
10. I considered the application and the submissions. I have perused the judgment of the subordinate court. I note that the court sentenced the Appellant to 5 years’ imprisonment instead of the mandatory 15 under Section 8 (4) of the Sexual Offences Act going by the age of the Complainant at 17 years. Other than that, no other exceptional circumstance has been pleaded and the issues raised in the affidavit in support are issues related to the merit of the appeal. Those in my view should be dealt with in the appeal.
11. I find that the application is unsupported. It is declined.
12. The Appellant to proceed and deal with the appeal itself.
Dated, signed and delivered virtually this 5 th March 2026
Mumbua T Matheka
Judge
CA Chrispol/Daniel
Applicant Present
Ms. Kabuu for applicant
Ms. Amol for the State
Ruling H.C.CR.A E084 of 2025 Kennedy Kaunda Mwambi vs Republic
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL APPEAL NO E084 OF 2025
(Appeal from the Judgment of Hon. Stephen Jalangó (SPM) Tawa delivered on 11/11/2025)
KENNEDY KAUNDA MWAMBI ……………………………. APPELLANT
VERSUS
REPUBLIC……………………………………….………….… RESPONDENT
RULING
1. Before me is the Notice of Motion dated 11/12/2025 brought under Section 123 (2) and (3) and 357 (1) of the Criminal Procedure Code .
2. It seeks orders that the Applicant be admitted to bail pending the hearing and determination of his appeal.
3. The Appellant was charged with Defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act , and in the alternative Indecent Act with a child Contrary to Section 11 (1 ) of the same Act .
4. After a full trial the court on 11/11/2025, found the Applicant guilty of defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act.
5. After considering the Pre-Sentence Report, the mitigation by the Applicant and the victim’s witness statement, the trial court sentenced the Applicant to 5 years’ imprisonment.
6. For bail pending appeal an Applicant has to establish grounds for the application; exceptional circumstances including that the appeal has overwhelming chances of success; that the Appellant may serve the whole or most of his sentence before the appeal is heard and determined.
7. The application was argued verbally by Ms. Kabuu for the Applicant and opposed by Mr. Musyoki for the State.
8. Ms. Kabuu argued that the appeal has high chances of success. From her supporting affidavit of the application, she endeavored to demonstrate the weaknesses in the case before the subordinate court. Furthermore, she submits that the Applicant has a young family that depends on him.
9. The application is opposed on the grounds that no exceptional circumstances have been set out and that the Applicant does not enjoy the presumption of innocence he did before the conviction hence bail pending appeal is not an unlimited right.
10. I considered the application and the submissions. I have perused the judgment of the subordinate court. I note that the court sentenced the Appellant to 5 years’ imprisonment instead of the mandatory 15 under Section 8 (4) of the Sexual Offences Act going by the age of the Complainant at 17 years. Other than that, no other exceptional circumstance has been pleaded and the issues raised in the affidavit in support are issues related to the merit of the appeal. Those in my view should be dealt with in the appeal.
11. I find that the application is unsupported. It is declined.
12. The Appellant to proceed and deal with the appeal itself.
Dated, signed and delivered virtually this 5 th March 2026
Mumbua T Matheka
Judge
CA Chrispol/Daniel
Applicant Present
Ms. Kabuu for applicant
Ms. Amol for the State
Ruling H.C.CR.A E084 of 2025 Kennedy Kaunda Mwambi vs Republic