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Court of AppealAllowedCriminal Application E026 of 2022· [2022] KECA 1267 (KLR)

John Koyi Waluke v Republic

Court of Appeal
18 November 2022
ASASIKE-MAKHANDIASKS OLE KANTAIGNGW NGENYE-MACHARIA
2,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal released MP John Waluke on bail pending his corruption appeal, ruling that losing his parliamentary seat was an exceptional circumstance.

What this practically means

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Executive summary

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The applicant, John Koyi Waluke, sought bail pending appeal under rule 5(2)(a) of the Court of Appeal Rules following the High Court's dismissal of his first appeal against conviction and sentence for corruption offences, including fraudulent acquisition of public property relating to NCPB, with fines exceeding Kshs 594 million and default sentences. The application was opposed by the Republic, which argued the appeal was not arguable, raised matters of fact beyond a second appeal, and that no exceptional circumstances existed. The Court of Appeal (Asike-Makhandia and G W Ngenye-Macharia, JJA) applied the settled threshold from Dominic Karanja, Jivraj Shah and Somo, and the Bail and Bond Policy Guidelines, that an applicant must show overwhelming chances of success or exceptional or unusual circumstances. The court found the grounds of appeal arguable without examining their merits, and held that the applicant's loss of his Sirisia parliamentary seat under article 103(1) if he missed sittings, together with the resultant loss of representation for his constituents, constituted exceptional and unusual circumstances. Bail pending appeal was granted on the same terms as in the High Court: cash bail of KShs 10 million in default a bond of KShs 20 million with one surety of similar amount. The ruling was delivered under rule 34(3) as Kantai, JA declined to sign, the header indicating a dissent. No costs order was recorded.

Key legal issues

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01

Arguability of the intended appeal

Holding

The court found the grounds of appeal arguable without delving into their merits.

Reasoning

Applying the settled test, the court confined itself to arguability, not the ultimate success of the grounds, which include whether a payment under a court order can sustain criminal liability and whether a non-executive director can be criminally liable for company transactions.

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Exceptional or unusual circumstances

Holding

Loss of the parliamentary seat for Sirisia Constituency and resultant loss of representation for constituents constituted exceptional and unusual circumstances.

Reasoning

The court accepted that continued incarceration would cause the applicant to miss sittings and lose his seat under article 103(1) of the Constitution, a prejudice that could not be reversed even if the appeal succeeded, and that constituents would be unrepresented.

p. 5

Legal principles established

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  • An applicant for bail pending appeal must demonstrate either an appeal with overwhelming chances of success or exceptional or unusual circumstances justifying release.
  • Loss of a parliamentary seat due to incarceration during an appeal can constitute exceptional and unusual circumstances for bail pending appeal.

Court orders

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  1. 1.Applicant admitted to bail pending appeal on the same bail terms as in the High Court (cash bail of KShs 10 million in default a bond of KShs 20 million with one surety of similar amount)

Authorities

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Legislation

  • Penal Codesections 353, 349, 108(1), 110
  • Anti-Corruption and Economic Crimes Act 2003sections 45(1)(a), 48(1), 48(1)(a)(i), 48(2)(a), 48(2)(b)
  • Court of Appeal Rules, 2012rules 5(2)(a), 34(3)
  • Constitution of Kenya, 2010article 103(1)
  • Bail and Bond Policy GuidelinesMarch 2015

Cases cited (5)

  • Epungure vs Republic
    [2021] KECA

    Requirements for bail pending appeal: exceptional circumstances, likelihood of success, substantial sentence served

  • Dominic Karanja vs Republic
    [1986] KLR 612

    Applicant must show overwhelming chances of success or exceptional or unusual circumstances

  • Jivraj Shah vs Republic
    [1986] KLR 605

    Principal consideration is exceptional or unusual circumstances; overwhelming chances equate to substantial merit

  • Krishnan vs The People
    SCZ 19 of 2011

    Conditions for bail pending appeal including exceptional circumstances and delay

  • Somo vs Republic
    [1972] EA 476

    Applicant on custodial sentence must show exceptional or unusual circumstances and overwhelming probability of success

On appeal from
High Court at Nairobi
HC Anti-Corruption Appeal No. 07 of 2020
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules, 2012

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, "John Koyi Waluke v Republic", Case Analysis (2022). Criminal Application E026 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1267/eng@2022-11-18

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