A. Introduction and Background
1. By way of Notice of Motion dated 23 rd July 2026 brought under Article 49(1)(h) of the Constitution of Kenya, Section 123 of the Criminal Procedure Code (Cap 75 Laws of Kenya), and all other enabling provisions of the law, the Applicants seek an order for this Court to review, vary, and set aside its previous orders delivered on 15 th July 2026, wherein their initial application for bail pending appeal was dismissed. The Applicants further pray that upon such review, they be admitted to bail or bond pending the hearing and determination of their substantive appeal.
2. The substantive appeal challenges the conviction and sentence handed down by Hon. E. K. Usui (MS) (CM) at the Malindi Law Courts in Criminal Case No. ACCR/1/2019, on 17 th April 2026 and 26 th May 2026 respectively, where the 1 st Applicant was sentenced to a custodial term of eight (8) years alongside a fine of Kshs. 34,763,640.
3. The instant application is founded upon the supporting affidavit of Samuel Buku Macharia, sworn on 23 rd July 2026, together with the annexures thereto, and is premised on the ground that there has been a material and significant change in circumstances specifically regarding the 1 st Applicant’s rapidly deteriorating health and pressing family medical responsibilities which constitutes new and compelling evidence warranting the exercise of this Court's review jurisdiction.
B. Submissions by parties
The Applicants' Submissions.
4. The Applicants contend that since the dismissal of the initial bail application on 15 th July 2026, exceptional circumstances have arisen.
5. The 1 st Applicant, aged 54, suffers from a long-standing history of spinal instability. He depones that while in custody, his condition has severely deteriorated, leading to excruciating pain, restricted mobility, worsening neurological symptoms, and a recent diagnosis of chronic gastritis.
6. He states that he has been treated at the Malindi Prison dispensary and subsequently referred to the Malindi Sub-County Hospital, but the prison medical system is ill-equipped to provide the specialized medical care he requires, putting him at risk of irreversible neurological complications.
7. Furthermore, the Applicants highlight that the 1 st Applicant is the sole breadwinner and primary caregiver for his child, who suffers from Haemophilia A, a severe and life-threatening congenital bleeding disorder requiring continuous specialist management and substantial financial support. It is argued that his continued detention severely impairs his ability to coordinate this essential healthcare, exposing the child to grave danger.
8. Citing authorities such as Waititu Babayao v. Republic [2025] KEHC 11257 (KLR), R v Nottingham Justices Exparte Davies (1981) QB38, Josh v. Republic [2026] KEHC 242 (KLR), and Karanja v. Republic [2025] KEHC 8765 (KLR), the Applicants submit that this Court possesses both statutory and inherent jurisdiction to revisit interlocutory orders and review bail terms where new, compelling evidence emerges or where humanitarian grounds dictate to prevent injustice.
9. They maintain that their impeccable attendance record throughout the lower court trial demonstrates that they are not flight risks.
The Respondent’s Submissions
10. The Respondent vehemently opposes the application. Through its oral and filed opposition, the Respondent submits that the application lacks merit and amounts to an abuse of the court process.
11. The Respondent contends that the Applicants have failed to demonstrate any violation of their constitutional rights, noting that the sentence imposed by the trial court is lawful, valid, and proportionate.
12. The Respondent further argues that the medical concerns raised do not meet the exceptionally high threshold required to displace a lawful post-conviction imprisonment, and that the overarching interests of justice do not favor the release of the Applicants.
C. Issues for Determination.
13. Upon considering the motion, the affidavits, the rival written submissions, and the jurisprudence cited, this Court distils the matter into two primary issues for determination:
(i) Whether this Court has the legal competence and jurisdiction to review, vary, or set aside its ruling delivered on 15 th July 2026.
(ii) Whether the Applicants have established new, compelling evidence and exceptional circumstances sufficient to warrant the exercise of this Court's discretion to grant bail pending appeal.
D. Analysis and Determination
(i) Whether this Court has the legal competence and jurisdiction to review, vary, or set aside its ruling delivered on 15 th July 2026.
14. It is a foundational principle of law that once a court renders a final judgment or ruling, it becomes functus officio. However, interlocutory orders—such as those relating to bail, bond, and custody pending trial or appeal—are inherently subject to variation or review upon a demonstration of a material change in circumstances.
15. Section 123(3) of the Criminal Procedure Code provides statutory anchorage for the review of bail terms. Moreover, as articulated in R v Nottingham Justices Exparte Davies (1981) QB 38 and endorsed in our local jurisprudence, a court is fully entitled and bound to examine whether there are new considerations, material facts, or developments that were not before the court when the matter was last evaluated.
16. The doctrine of res judicata does not operate as an absolute bar in matters of liberty where subsequent medical or factual realities fundamentally alter the matrix upon which the earlier decision was made.
17. This Court therefore holds that it possesses both statutory and inherent jurisdiction to entertain an application for review based on genuinely new and compelling facts.
(ii) Whether the Applicants have established new, compelling evidence and exceptional circumstances sufficient to warrant the exercise of this Court's discretion to grant bail pending appeal.
18. The principles governing bail pending appeal are well settled: the presumption of innocence is spent upon conviction, and the applicant must demonstrate either overwhelming prospects of success or exceptional and unusual circumstances.
19. Where an applicant approaches the court by way of review following a dismissal, the focus shifts to whether subsequent developments create an exceptional situation—such as a severe threat to life or health that cannot be managed within the penal facility.
20. In the present application, the 1 st Applicant has brought forth fresh medical material (exhibits SBM 2 and SBM 3(a)-(b)) detailing his ongoing struggles with spinal instability and nerve related complications, compounded by a new diagnosis of chronic gastritis. While the prison authorities provide basic care, the threshold for medical bail is met when specialized external treatment is demonstrably urgent and unavailable within the correctional system, creating a real and present danger to the applicant's health or life, as underscored in Josh v. Republic [2026] KEHC 242 (KLR) and Karanja v. Republic [2025] KEHC 8765 (KLR).
21. Further, the predicament regarding the 1 st Applicant's minor child, who suffers from Haemophilia A, supported by the letter from the Kenya Haemophilia Association marked 'SBM 4', introduces a profound humanitarian dimension. While familial hardship alone rarely suffices, it forms a compelling cumulative fabric when weighed alongside deteriorating physical health and the strictures of custody.
22. Nevertheless, bail pending appeal remains a discretionary relief designed to balance the individual's rights against the administration of criminal justice and the integrity of court imposed sentences.
23. Although the medical material reveals chronic underlying ailments, the threshold of establishing that the penal institution is entirely incapable of managing the 1 st Applicant's condition or that his continued detention poses an imminent, irreversible threat to his life has not been conclusively demonstrated to a degree that overrides the public interest in serving a lawful sentence.
24. The medical notes indicate chronic conditions that require management rather than an acute, life threatening emergency necessitating immediate enlargement on bail.
25. Similarly, regarding the 2 nd Applicant no new or compelling grounds have been advanced that would justify a review of the earlier orders.
E. Disposition
26. In light of the foregoing analysis, while this Court acknowledges its inherent jurisdiction to review interlocutory orders upon a material change in circumstances, the material presented in this second application does not cross the exceptionally high legal threshold required to displace the validly imposed post-conviction imprisonment.
27. Accordingly, the Notice of Motion dated 23 rd July 2026 is hereby dismissed.
28. To ensure that the substantive appeal progresses expeditiously, this matter shall be mentioned on 17 th September 2026 for directions.
29. It is so ordered.
DATED AND DELIVERED AT MALINDI THIS….16 th .. DAY OF September.. 2026.
C.AKAIGWA
JUDGE
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1. By way of Notice of Motion dated 23 rd July 2026 brought under Article 49(1)(h) of the Constitution of Kenya, Section 123 of the Criminal Procedure Code (Cap 75 Laws of Kenya), and all other enabling provisions of the law, the Applicants seek an order for this Court to review, vary, and set aside its previous orders delivered on 15 th July 2026, wherein their initial application for bail pending appeal was dismissed. The Applicants further pray that upon such review, they be admitted to bail or bond pending the hearing and determination of their substantive appeal.
2. The substantive appeal challenges the conviction and sentence handed down by Hon. E. K. Usui (MS) (CM) at the Malindi Law Courts in Criminal Case No. ACCR/1/2019, on 17 th April 2026 and 26 th May 2026 respectively, where the 1 st Applicant was sentenced to a custodial term of eight (8) years alongside a fine of Kshs. 34,763,640.
3. The instant application is founded upon the supporting affidavit of Samuel Buku Macharia, sworn on 23 rd July 2026, together with the annexures thereto, and is premised on the ground that there has been a material and significant change in circumstances specifically regarding the 1 st Applicant’s rapidly deteriorating health and pressing family medical responsibilities which constitutes new and compelling evidence warranting the exercise of this Court's review jurisdiction.
B. Submissions by parties
The Applicants' Submissions.
4. The Applicants contend that since the dismissal of the initial bail application on 15 th July 2026, exceptional circumstances have arisen.
5. The 1 st Applicant, aged 54, suffers from a long-standing history of spinal instability. He depones that while in custody, his condition has severely deteriorated, leading to excruciating pain, restricted mobility, worsening neurological symptoms, and a recent diagnosis of chronic gastritis.
6. He states that he has been treated at the Malindi Prison dispensary and subsequently referred to the Malindi Sub-County Hospital, but the prison medical system is ill-equipped to provide the specialized medical care he requires, putting him at risk of irreversible neurological complications.
7. Furthermore, the Applicants highlight that the 1 st Applicant is the sole breadwinner and primary caregiver for his child, who suffers from Haemophilia A, a severe and life-threatening congenital bleeding disorder requiring continuous specialist management and substantial financial support. It is argued that his continued detention severely impairs his ability to coordinate this essential healthcare, exposing the child to grave danger.
8. Citing authorities such as Waititu Babayao v. Republic [2025] KEHC 11257 (KLR), R v Nottingham Justices Exparte Davies (1981) QB38, Josh v. Republic [2026] KEHC 242 (KLR), and Karanja v. Republic [2025] KEHC 8765 (KLR), the Applicants submit that this Court possesses both statutory and inherent jurisdiction to revisit interlocutory orders and review bail terms where new, compelling evidence emerges or where humanitarian grounds dictate to prevent injustice.
9. They maintain that their impeccable attendance record throughout the lower court trial demonstrates that they are not flight risks.
The Respondent’s Submissions
10. The Respondent vehemently opposes the application. Through its oral and filed opposition, the Respondent submits that the application lacks merit and amounts to an abuse of the court process.
11. The Respondent contends that the Applicants have failed to demonstrate any violation of their constitutional rights, noting that the sentence imposed by the trial court is lawful, valid, and proportionate.
12. The Respondent further argues that the medical concerns raised do not meet the exceptionally high threshold required to displace a lawful post-conviction imprisonment, and that the overarching interests of justice do not favor the release of the Applicants.
C. Issues for Determination.
13. Upon considering the motion, the affidavits, the rival written submissions, and the jurisprudence cited, this Court distils the matter into two primary issues for determination:
(i) Whether this Court has the legal competence and jurisdiction to review, vary, or set aside its ruling delivered on 15 th July 2026.
(ii) Whether the Applicants have established new, compelling evidence and exceptional circumstances sufficient to warrant the exercise of this Court's discretion to grant bail pending appeal.
D. Analysis and Determination
(i) Whether this Court has the legal competence and jurisdiction to review, vary, or set aside its ruling delivered on 15 th July 2026.
14. It is a foundational principle of law that once a court renders a final judgment or ruling, it becomes functus officio. However, interlocutory orders—such as those relating to bail, bond, and custody pending trial or appeal—are inherently subject to variation or review upon a demonstration of a material change in circumstances.
15. Section 123(3) of the Criminal Procedure Code provides statutory anchorage for the review of bail terms. Moreover, as articulated in R v Nottingham Justices Exparte Davies (1981) QB 38 and endorsed in our local jurisprudence, a court is fully entitled and bound to examine whether there are new considerations, material facts, or developments that were not before the court when the matter was last evaluated.
16. The doctrine of res judicata does not operate as an absolute bar in matters of liberty where subsequent medical or factual realities fundamentally alter the matrix upon which the earlier decision was made.
17. This Court therefore holds that it possesses both statutory and inherent jurisdiction to entertain an application for review based on genuinely new and compelling facts.
(ii) Whether the Applicants have established new, compelling evidence and exceptional circumstances sufficient to warrant the exercise of this Court's discretion to grant bail pending appeal.
18. The principles governing bail pending appeal are well settled: the presumption of innocence is spent upon conviction, and the applicant must demonstrate either overwhelming prospects of success or exceptional and unusual circumstances.
19. Where an applicant approaches the court by way of review following a dismissal, the focus shifts to whether subsequent developments create an exceptional situation—such as a severe threat to life or health that cannot be managed within the penal facility.
20. In the present application, the 1 st Applicant has brought forth fresh medical material (exhibits SBM 2 and SBM 3(a)-(b)) detailing his ongoing struggles with spinal instability and nerve related complications, compounded by a new diagnosis of chronic gastritis. While the prison authorities provide basic care, the threshold for medical bail is met when specialized external treatment is demonstrably urgent and unavailable within the correctional system, creating a real and present danger to the applicant's health or life, as underscored in Josh v. Republic [2026] KEHC 242 (KLR) and Karanja v. Republic [2025] KEHC 8765 (KLR).
21. Further, the predicament regarding the 1 st Applicant's minor child, who suffers from Haemophilia A, supported by the letter from the Kenya Haemophilia Association marked 'SBM 4', introduces a profound humanitarian dimension. While familial hardship alone rarely suffices, it forms a compelling cumulative fabric when weighed alongside deteriorating physical health and the strictures of custody.
22. Nevertheless, bail pending appeal remains a discretionary relief designed to balance the individual's rights against the administration of criminal justice and the integrity of court imposed sentences.
23. Although the medical material reveals chronic underlying ailments, the threshold of establishing that the penal institution is entirely incapable of managing the 1 st Applicant's condition or that his continued detention poses an imminent, irreversible threat to his life has not been conclusively demonstrated to a degree that overrides the public interest in serving a lawful sentence.
24. The medical notes indicate chronic conditions that require management rather than an acute, life threatening emergency necessitating immediate enlargement on bail.
25. Similarly, regarding the 2 nd Applicant no new or compelling grounds have been advanced that would justify a review of the earlier orders.
E. Disposition
26. In light of the foregoing analysis, while this Court acknowledges its inherent jurisdiction to review interlocutory orders upon a material change in circumstances, the material presented in this second application does not cross the exceptionally high legal threshold required to displace the validly imposed post-conviction imprisonment.
27. Accordingly, the Notice of Motion dated 23 rd July 2026 is hereby dismissed.
28. To ensure that the substantive appeal progresses expeditiously, this matter shall be mentioned on 17 th September 2026 for directions.
29. It is so ordered.
DATED AND DELIVERED AT MALINDI THIS….16 th .. DAY OF September.. 2026.
C.AKAIGWA
JUDGE
Page 2 of 2