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Court of AppealAllowedCriminal Application (Rule 5(2)(a)) arising from Nairobi High Court Criminal Appeal No E165 of 2022

Juma v Republic (Criminal Application E023 of 2023) [2023] KECA 1138 (KLR)

Court of Appeal of Kenya
22 September 2023
2,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal freed an extradition detainee on bail, ruling that holding a non-convict at a police station indefinitely counts as exceptional circumstances.

What this practically means

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Executive summary

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In a unanimous judgment of the Court of Appeal at Nairobi, delivered on September 22, 2023 by Asike-Makhandia, S. Ole Kantai and M. Gachoka, JJ A, the court allowed an application by Abdulrahman Imraan Juma for bail pending appeal under rule 5(2)(a) of the Court of Appeal Rules. The applicant, the subject of extradition proceedings to the United States initiated by the DPP under Section 5(1) of the Extradition (Contiguous and Foreign Countries) Act, had been ordered by a Magistrate to be repatriated and held at Gigiri Police Station. His appeal to the High Court (Ogembo, J) was dismissed on November 28, 2022, and the court had already, on May 12, 2023, granted him stay of execution pending appeal after finding the intended appeal arguable. Applying the settled criteria from Daniel Dominic Karanja and Jivraj Shah - overwhelming chances of success, exceptional or unusual circumstances, and substantial service of sentence - the court held that a non-convict detained at a police station for an indefinite period pending appeal falls squarely within exceptional and unusual circumstances, noting his prior compliance with High Court bail, his claimed ill-health, absence of demonstrated flight risk, and the protective stay orders. The court admitted the applicant to bail on a Shs.2,000,000 bond with one similar surety, surrender of his passport, monthly reporting to Gigiri Police Station, and filing of the appeal within sixty days, making no order on costs. The judgment binds lower courts on the test for bail pending appeal for extradition detainees.

Questions the Court framed

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

  1. 1.Whether the intended appeal has overwhelming chances of success
  2. 2.Whether there exist exceptional or unusual circumstances warranting the applicant's release on bail pending appeal
  3. 3.Whether there is a high probability of a substantial part of the sentence being served before the appeal is heard

Key legal issues

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01

Test for bail pending appeal under rule 5(2)(a) of the Court of Appeal Rules

Holding

The court applied the established criteria: overwhelming chances of success of the appeal; exceptional or unusual circumstances; and likelihood of substantial service of sentence. It found that an applicant who is not a convict, held at a police station for an indefinite period, has already been granted bail by the High Court and did not abscond, and is protected by stay orders against extradition, satisfies the exceptional and unusual circumstances limb.

Reasoning

The court reiterated the principles from Daniel Dominic Karanja and Jivraj Shah, noting the applicant is not a convict in the true sense since he has never been tried or convicted. The court had already found the intended appeal arguable in its May 12, 2023 stay ruling. Detention at a police station for a long period, prior compliance with High Court bail, claimed ill-health without adequate facilities, absence of demonstrated flight risk, and the stay orders protecting him within the jurisdiction collectively warranted release on bond with conditions rather than continued police-station custody.

p. 5
02

Whether the applicant is a flight risk and whether ill-health constitutes an exceptional circumstance

Holding

The court found it had not been demonstrated that the applicant is a flight risk, noting the stay orders prohibit his extradition, and held that a bare assertion by the respondent that arrangements can be made for medical care was insufficient; there was no reason to deny bail.

Reasoning

The respondent's affidavit asserted the applicant was a fugitive and flight risk because Kenya has porous borders, and that his alleged medical condition was never supported by material evidence and presented no exceptional circumstance. The court rejected this: the applicant had previously been on High Court bail and did not abscond; the Court's own stay orders confined him to the country; and the respondent's offer to make arrangements at the police station was not enough to counter the applicant's claim of inadequate medical care.

p. 5
03

Applicability of the 'substantial part of sentence served' criterion to an extradition appellant

Holding

The criterion was inapplicable on its terms because there is no sentence being served; what is in issue is extradition to a foreign country to face trial, so the court disposed of the application on the other limbs.

Reasoning

The applicant submitted that there is no sentence to be served as the dispute concerns his intended extradition to a foreign country for trial, and that a foreign court may not credit time spent in Kenyan custody. The court's analysis focused on the arguability of the appeal (already established in the May 12, 2023 ruling) and the exceptional circumstances of his detention, granting bail on conditions without treating the sentence limb as an obstacle.

p. 5

Legal principles established

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  • Bail is a constitutional right and may be denied only where denial is demonstrated and proved; detention of a non-convict at a police station for an indefinite period pending appeal constitutes exceptional and unusual circumstances for bail pending appeal.
  • The principal consideration on an application for bail pending appeal is whether exceptional or unusual circumstances exist, coupled with whether the appeal is likely to succeed on a substantial point of law and whether a substantial part of any sentence will have been served before the appeal is heard.

Court orders

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  1. 1.The applicant to execute a bond in the sum of Shs.2,000,000 plus one surety of the same amount to be approved by the Deputy Registrar of the Court
  2. 2.The applicant to deposit his passport with the Deputy Registrar of the Court
  3. 3.The applicant to report to Gigiri Police Station once monthly until the appeal is determined or until further orders of the Court
  4. 4.The applicant to file his appeal within sixty (60) days
  5. 5.No order on costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Nairobi High Court Criminal Appeal No E165 of 2022
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules (bail pending appeal)

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 situation where the applicant, who is not a convict is held at the police station for an indefinite period pending hearing and determination of his appeal certainly falls within the 'exceptional and unusual circumstances.'
p. 5Exceptional and unusual circumstances for bail pending appeal
Bail is a constitutional right which should only be denied if it is demonstrated and proved that an applicant should be denied bail.
p. 5Bail as a constitutional right
The applicant will execute a bond in the sum of Shs.2,000,000 plus one surety of the same amount to be approved by the Deputy Registrar of this Court.
p. 5Final orders - bail terms
The applicant will file his appeal within sixty (60) days.
p. 5Final orders - timeline for filing appeal
We make no order on costs.
p. 5Final orders - costs

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, "Juma v Republic (Criminal Application E023 of 2023) [2023] KECA 1138 (KLR)", Case Analysis (2023). Criminal Application (Rule 5(2)(a)) arising from Nairobi High Court Criminal Appeal No E165 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1138/eng@2023-09-22

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