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Court of AppealDismissedCriminal Appeal (Application) No. 156 of 2016

Emmanuel Ochieng Awuondo v Republic [2018] KECA 230 (KLR)

Court of Appeal
25 October 2018
689 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it can release convicted appellants on bail pending a second appeal, but only where the appeal raises a substantial point of law.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge Court of Appeal bench at Kisumu on an application by Emmanuel Ochieng Awuondo for bail pending appeal. The applicant, convicted by the Senior Resident Magistrate on 7 October 2015 of trafficking in narcotic and psychotropic substances, had his first appeal dismissed by the High Court at Homa Bay (H.A. Omondi, J.) on 17 August 2016 and had filed Criminal Appeal No. 156 of 2016 in the Court of Appeal. He sought release on bail citing acute leukemia and diabetes and asserted his appeal had high chances of success; the State opposed, noting the absence of medical documents and of a demonstrated likelihood of success. The Court first addressed jurisdiction: Section 379(4) of the Criminal Procedure Code does not apply because it concerns first appeals, and Section 361(6) empowers only a High Court judge to grant bail on a pending second appeal. Nevertheless, following Dominic Karanja v. Republic and Kibera v. Republic, the Court held that Rule 5(2)(a) of the Court of Appeal Rules donates power to release a second appellant on bail pending appeal. On the merits, applying the Kibera test that bail be granted only where a substantial point of law could result in the conviction being quashed, the Court found that both courts below had made concurrent findings that the applicant was an occupant of the vehicle in which 339 kilograms of cannabis sativa were recovered, and that no substantial point of law was raised. The application was dismissed. No costs order was made. Isaac Ndira Osore, the second appellant, who sought to be joined to the application without seeking bail, was noted but no order in his favour appears.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has power under Rule 5(2)(a) of the Court of Appeal Rules to release a second appellant on bail pending appeal
  2. 2.Whether the applicant satisfied the threshold for admission to bail pending the determination of his appeal

Key legal issues

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01

Jurisdiction to grant bail pending a second appeal

Holding

The Court has jurisdiction under Rule 5(2)(a) of the Court of Appeal Rules to release a second appellant on bail pending appeal, even though neither the Criminal Procedure Code generally, nor Section 379(4) (which applies only to first appeals) nor Section 361(6) (which empowers only a High Court judge), confers that power expressly on the Court of Appeal.

Reasoning

Section 379(4) of the Criminal Procedure Code was inapplicable because it relates only to first appeals to the Court of Appeal, while Section 361(6) empowers only a High Court judge to grant bail where a second appeal is pending and does not mention the Court of Appeal. The Court nonetheless found ample precedent establishing that Rule 5(2)(a) of its own Rules donates power to release a second appellant on bail pending appeal, and it exercised that jurisdiction on this application.

p. 2
02

Threshold for bail pending second appeal

Holding

The applicant failed the threshold because his grounds of appeal did not raise a substantial point of law capable of resulting in the quashing of his conviction.

Reasoning

Applying the Kibera v. Republic test, the Court examined the record of appeal and the memorandum of appeal. The prosecution case was that the applicant was one of two people transporting 339 kilograms of cannabis sativa in the motor vehicle where the drugs were recovered, while the applicant and co-accused said they were not inside the vehicle. Both courts below made a concurrent factual finding that the applicant and co-accused were occupants of the vehicle. Against those concurrent findings, no substantial point of law was shown, and the application was dismissed.

p. 2

Legal principles established

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  • The Court of Appeal has power donated by Rule 5(2)(a) of the Court of Appeal Rules to release a second appellant on bail pending appeal, notwithstanding the silence of the Criminal Procedure Code
  • Bail pending a second appeal may be granted only where the court is satisfied there is a substantial point of law to be argued which could result in the conviction being quashed

Court orders

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  1. 1.The application for bail pending appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Homa Bay
H.C.CR.A. Nos. 36 & 37 of 2016
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules - power to release an appellant on bail pending the determination of an appeal

Relief refused

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Bail pending appeal

The applicant failed to demonstrate a substantial point of law likely to result in the conviction being quashed, having regard to the concurrent findings of the two courts below that he was an occupant of the motor vehicle in which the drugs were recovered

p. 2

Costs

No costs order made

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appellate court may grant bail pending a second appeal if it is satisfied that there is a substantial point of law to be argued which could result in the conviction being quashed.
p. 2Threshold for bail pending second appeal
Rule 5 (2) (a) of the Court of Appeal Rules (the Rules) confers power to the Court to release an appellant on bail pending the determination of an appeal.
p. 1Jurisdictional basis for bail pending appeal
In the premises, the application is dismissed. We so order.
p. 2Final orders - dismissal of the application

Issues in the judgment

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minor

The judgment misspells the first cited authority as 'Dominc Karanja' in both instances where it appears

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Emmanuel Ochieng Awuondo v Republic [2018] KECA 230 (KLR)", Case Analysis (2018). Criminal Appeal (Application) No. 156 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/230/eng@2018-10-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.