Langat v Republic

Section 357 governs bail applications in the High Court or subordinate courts after conviction, while Article 49(1)(h) concerns bail pending charge or trial. Neither fits a Court of Appeal application. Because the respondent raised no objection and Article 159(2)(d) eschews procedural technicalities, the court cured the defect by treating the application as brought under rule 5(2)(a).

After conviction the presumption of innocence no longer applies; the law presumes the conviction is proper. The applicant therefore bears the onus of demonstrating either an overwhelming probability that the appeal will succeed, at least as to sentence, or exceptional or unusual circumstances. These principles, drawn from Somo v Republic and restated in Daniel Dominic Karanja, Jivraj Shah and Mutua, guided the court's assessment.

The applicant asserted he was sickly and needed specialised treatment but annexed no medical reports. Following Daniel Dominic Karanja, the court noted that previous good character and hardship to wife and children are not exceptional or unusual factors, that a mere assertion of non-absconding is insufficient, and that medical facilities exist for prisoners, so ill-health per se is not automatically exceptional.

The memorandum of appeal raised identification of the applicant, sufficiency of proof beyond reasonable doubt, disbelief of the defence, and failure to analyse evidence or call crucial witnesses. The court declined to assess merits in depth, holding that a possibility of success is not the same as an overwhelming probability, and so the threshold for bail pending appeal was not met.