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Court of AppealDismissedCriminal Application E088 of 2021· [2022] KECA 1064 (KLR)

Luca Mwita Machera v Republic

Court of Appeal of Kenya
7 October 2022
ASAsike-MakhandiaPKP. O. KiageFTF. Tuiyott
1,247 words in judgment
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The bottom line

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Kenya's Court of Appeal refused bail to a convicted man, confirming that bail pending appeal is granted only in rare, exceptional circumstances.

What this practically means

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Executive summary

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The applicant, convicted of murder by the High Court at Migori (Wendoh, J.) and sentenced to twenty years imprisonment, applied to the Court of Appeal for bail pending the hearing and determination of his appeal, invoking Rule 4 of the Court of Appeal Rules and section 379(4) of the Criminal Procedure Code. He argued that his appeal was arguable, that the application was made without delay, that he had faithfully attended trial while on bail, and that he would abide by any conditions imposed. The Republic opposed, relying on Jivraj Shah v Republic, and noted that no draft memorandum of appeal had been attached. The Court (Asike-Makhandia, Kiage and Tuiyott, JJA) framed a single issue: whether the applicant met the threshold for bail pending appeal under Rule 5(2)(a). Restating the settled criteria - overwhelming chances of success, exceptional or unusual circumstances, and substantial service of sentence - the Court held that none was satisfied. The applicant advanced no ground of appeal demonstrating arguability; his faithful attendance at trial while on bail was expressly held insufficient, per Dominic Karanja v Republic; and having served only about a year of a twenty-year sentence, he could not show that a substantial part would be served before the appeal was heard. The application was dismissed in its entirety, with no costs order made. The ruling binds subordinate courts on the threshold for bail pending appeal.

Key legal issues

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01

Whether the threshold for bail pending appeal was met

Holding

The threshold was not met: no overwhelming chances of success were shown, no exceptional or unusual circumstances existed, and the sentence had not been substantially served.

Reasoning

The court applied the Jivraj Shah criteria: exceptional or unusual circumstances, overwhelming chances of success on a substantial point of law, and substantial service of sentence. The applicant attached no draft memorandum of appeal, offered only his faithful attendance at trial while on bail, and had served about a year of a twenty-year sentence.

p. 3

Legal principles established

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  • Bail pending appeal will only be granted in rare and exceptional circumstances, since a convicted person has lost the presumption of innocence and bears the burden on appeal.
  • A mere assertion by an applicant that he will not abscond, even if supported by sureties, is insufficient ground for bail pending appeal.
  • Faithful attendance at trial while on bail is not a sufficient ground to release a convicted person on bail pending appeal.

Court orders

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  1. 1.The application for bail pending appeal is dismissed in its entirety

Authorities

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Legislation

  • Penal Codesections 203 and 204
  • Criminal Procedure Codesection 379(4)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(a)
  • Court of Appeal RulesRule 59
  • Constitution of Kenyapresumption of innocence

Cases cited (10)

  • Jivraj Shah v Republic
    (1986) KLR 605

    Threshold for bail pending appeal: exceptional or unusual circumstances, arguable appeal on substantial point of law, sentence substantially served

  • Michael Otieno Ademba v Republic
    (1982-88) 1 KAR 263

    Bail pending appeal granted only in rare and exceptional circumstances

  • Abdi v Republic
    [1991] KLR 171

    Bail pending appeal granted only in rare and exceptional circumstances

  • Issack Tulicha Guyo v Republic
    [2011] eKLR

    Bail pending appeal granted only in rare and exceptional circumstances

  • Ademba v Republic
    [1983] KLR 442

    Consideration of whether the appeal has overwhelming chances of success

  • Somo v Republic
    [1972] EA 476

    Overwhelming chances of success; exceptional or unusual circumstances

  • Mutua v Republic
    [1988] KLR 497

    Overwhelming chances of success; exceptional or unusual circumstances

  • Raghbir Singh Lamba v Republic
    [1958] EA 37

    Exceptional or unusual circumstances warranting release on bail

  • Chimabhai v Republic
    [1971] EA 343

    Probability of sentence being served before the appeal is heard

  • Dominic Karanja v Republic
    (1986) KLR 612

    Solemn assertion that applicant will not abscond is insufficient ground for bail pending appeal

On appeal from
High Court of Kenya at Migori
HC.CR. Case No. 10 of 2019
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules; section 379(4) of the Criminal Procedure Code

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, "Luca Mwita Machera v Republic", Case Analysis (2022). Criminal Application E088 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1064/eng@2022-10-07

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