Issack Tulicha Guyo v Republic [2011] KECA 394 (KLR)
The bottom line
#The Court of Appeal ruled it can only grant bail after conviction in rare, exceptional cases, and this applicant showed none.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has power under Section 357(1) of the Criminal Procedure Code to admit a convicted person to bail pending appeal to the Court of Appeal
- 2.Whether Article 49 of the Constitution entitles a person tried, convicted and whose conviction was confirmed by the High Court to bail pending appeal in the Court of Appeal
- 3.Whether the applicant had shown exceptional circumstances justifying bail pending appeal under Rule 5(2)(a) of the Court of Appeal Rules
Key legal issues
#Statutory basis for bail pending appeal in the Court of Appeal
Section 357(1) of the Criminal Procedure Code applies only to appeals to the High Court from subordinate courts and confers no power on the Court of Appeal to grant bail pending appeal; nor does Section 361.
The court read Section 357(1) literally: it governs appeals from subordinate courts to the High Court. Appeals to the Court of Appeal from High Court appellate decisions are brought under Section 361, which contains no provision authorising release on bail pending appeal. The applicant's invocation of that section was therefore misplaced, leaving only Rule 5(2)(a) of the Court of Appeal Rules as the operative source of the court's discretionary power.
Application of Article 49 of the Constitution to bail pending appeal
Article 49 protects arrested persons awaiting trial and does not entitle a person already convicted, whose conviction has been confirmed by the High Court, to bail from the Court of Appeal.
The court distinguished the pre-trial rights of arrested persons, which Article 49 protects, from the position of a convicted person whose conviction has been affirmed on first appeal. The constitutional presumption of innocence is lost upon conviction, so the Article offers no foothold for post-conviction bail at the appellate stage. The applicant's reliance on the new Constitution was accordingly rejected.
Test for exercise of discretion under Rule 5(2)(a)
Bail pending appeal under Rule 5(2)(a) is discretionary and granted only in rare and exceptional circumstances, the burden being on the convicted person to demonstrate such circumstances.
The court reiterated the settled principle that a convicted person has lost the constitutional presumption of innocence and bears the burden of showing the conviction was wrong. Hence bail pending appeal is exceptional. On the facts, apart from submitting that the appeal might take time to be heard, counsel identified no exceptional circumstances; the seven-year sentence alone did not suffice, and the motion was dismissed.
Legal principles established
#- Section 357(1) of the Criminal Procedure Code does not confer on the Court of Appeal power to release convicted persons on bail pending appeal to the Court of Appeal; it applies only to appeals to the High Court from subordinate courts.
- Article 49 of the Constitution, dealing with rights of arrested persons awaiting trial, does not entitle a person convicted and whose conviction has been confirmed by the High Court to be released on bail by the Court of Appeal pending appeal.
- Under Rule 5(2)(a) of the Court of Appeal Rules, bail pending appeal is discretionary and will only be granted in rare and exceptional circumstances, bearing in mind that a convicted person has lost the presumption of innocence and bears the burden of showing the conviction was wrong.
Court orders
#- 1.The applicant's notice of motion for bail pending appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.CR.C. No. 248 of 2008
- Jurisdiction invoked
- Rule 5(2)(a) of the Court of Appeal Rules (application for bail pending appeal); Section 357(1) Criminal Procedure Code and Article 49 of the Constitution raised but found inapplicable
Relief refused
#Bail pending the hearing and determination of the intended appeal to the Court of Appeal
The court lacked power under Section 357(1) CPC or Article 49 for such bail, and no exceptional circumstances were shown under Rule 5(2)(a)
Costs
No costs order made
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That section does not confer on the Court of Appeal power to release convicted persons on bail pending their appeal to the Court of Appeal.
It is not, therefore, surprising that it has been stated time and time again that bail pending appeal will only be granted in rare and exceptional circumstances
the applicant’s notice of motion fails and we order that it be and is hereby dismissed. Dated and delivered at Nairobi this 28th day of January 2011.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issack Tulicha Guyo v Republic [2011] KECA 394 (KLR)", Case Analysis (2011). Criminal Application No. 16 of 2010 (UR12/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/394/eng@2011-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.