Makwata & another v Republic (Criminal Appeal (Application) E107 of 2023) [2024] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal refused bail to two convicted appellants, ruling that arguable appeals and manageable illnesses don't justify release; it instead fast-tracked their appeal hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have demonstrated overwhelming chances of success or circumstances disclosing substantial merit in the appeal warranting bail pending appeal
- 2.Whether the applicants' medical conditions constitute special circumstances justifying release on bail pending appeal
- 3.Whether the likelihood of the applicants serving a substantial portion of their sentence before the appeal is heard constitutes exceptional circumstances warranting bail or instead calls for expedition of the appeal
Key legal issues
#Test for bail pending appeal
Bail pending appeal is discretionary and requires exceptional or unusual circumstances; overwhelming chances of success or substantial merit in the appeal may justify it
The Court reiterated the settled principles from Shah v Republic, Dominic Karanja v Republic and Jivraj Shah v Republic. A convicted person has lost the presumption of innocence and bears the burden of showing the conviction was wrong. The Court found the appeal eminently arguable but not one with overwhelming chances of success, so the first limb was not satisfied.
Medical grounds as special circumstances
Diabetes, hypertension and pulmonary tuberculosis, as evidenced by external medical reports, do not establish special circumstances because such conditions can be managed within the prison system
The Court held that ill health without more is insufficient; the applicant must show the ailment cannot be managed in prison or is life-threatening on humanitarian grounds. The medical documents were from outside doctors rather than prison medical personnel, reducing their probative value, and the conditions disclosed were considered manageable by prison medical staff.
Substantial service of sentence before appeal heard
Where an appellant is likely to serve a substantial portion of the sentence before the appeal is determined, the Court may grant bail or, alternatively, expedite the appeal; here the Court chose expedition
The Court accepted, with the respondent's concession, that the applicants were likely to serve a substantial portion of their concurrent terms given the docket state. Rather than granting bail, the Court exercised its discretion to order the appeal heard on a priority basis during the current term, directing the Deputy Registrar accordingly.
Legal principles established
#- Bail pending appeal is not an entitlement but a matter of discretion granted only in rare and exceptional circumstances; the presumption of innocence dissipates upon conviction
- Ill health alone does not warrant bail pending appeal; the applicant must show the ailment cannot be managed in prison or is life-threatening such that humanitarian considerations militate release
- Where an applicant is likely to serve a substantial portion of the sentence before the appeal is heard, the Court may either grant bail or expedite the hearing of the appeal
Court orders
#- 1.Application for bail pending appeal not granted
- 2.Appeal to be heard on a priority basis
- 3.Deputy Registrar directed to list the appeal for hearing during the current term
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Kakamega High Court Criminal Appeals No. 45 & 46 of 2021
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal to grant bail pending appeal (discretionary jurisdiction; no constitutional entitlement invoked)
Relief refused
#Bail pending appeal
Applicants failed to demonstrate exceptional or unusual circumstances; medical conditions are manageable in prison and the risk of serving a substantial part of the sentence was addressed by expediting the appeal rather than granting bail
Costs
No order as to costs made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
bail pending appeal is not an entitlement. Instead, it is generally a matter of the Court’s discretion upon an appellant demonstrating to the Court existence of certain exceptional circumstances.
bail pending appeal will only be granted in rare and exceptional circumstances.
ill health without more is not suficient reason to warrant release of a convicted applicant on bail pending appeal.
we hereby order that the appeal be heard on a priority basis. We, therefore, direct the Deputy Registrar to list the appeal for hearing during the current term.
Issues in the judgment
#Typographical error in the subordinate court case number: 'Criminal Case No. 675 of 209' appears to omit the '2' of 2029/2029-era year reference
Paragraph 1 of the judgment is blank in the record provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makwata & another v Republic (Criminal Appeal (Application) E107 of 2023) [2024] KECA 134 (KLR)", Case Analysis (2024). Criminal Application (Bail Pending Appeal) arising from Criminal Appeals – Kakamega High Court Criminal Appeals No. 45 & 46 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/134/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.