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Court of AppealAllowedCriminal Application (bail pending appeal) arising from intended appeal against Kabarnet High Court Criminal Appeal No. E009 of 2021· [2024] KECA 148 (KLR)

Kosgei v Republic (Criminal Application E002 of 2023) [2024] KECA 148 (KLR)

Court of Appeal of Kenya
16 February 2024
1,747 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 a diabetic prisoner on bail pending appeal, ruling that health, time already served, and a good court attendance record outweighed unproven flight-risk claims.

What this practically means

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Executive summary

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This is a single-judgment decision of the Court of Appeal at Nakuru (Sicha, Ochieng and Korir, JJ.A) delivered on 16th February 2024, determining an application under rule 5(2)(a) of the Court of Appeal Rules, 2022 by Meshack Kipkoech Kosgei for bail pending his intended appeal. The applicant had been convicted by the Magistrate's Court for causing death by dangerous driving and careless driving, sentenced to five years imprisonment and a fine, and his first appeal was dismissed by Matheka, J. of the High Court at Kabarnet on 18th April 2023; he had since lodged a notice of appeal to the Court of Appeal. Applying the settled principles in Jivraj Shah v. Republic, as restated in Simon Mwangi Kirika v. Republic and Daniel Dominic Karanja v. Republic, the Court first found the intended appeal arguable: grounds alleging neglect of duty and failure by the first appellate court to consider submissions raised questions of law fit for a second appeal. On exceptional circumstances, the Court weighed the applicant's diabetes, the nearly ten months already served, and the uncertainty of when the appeal would be heard, holding that success after the sentence had been served would be illusory since prison time cannot be restored. The respondent's unsupported claim of flight risk was rejected, the applicant having faithfully attended trial while on bond. The Court allowed the application, granting bail pending appeal on bond of KSh. 400,000 with one similar surety or cash bail of KSh. 200,000. No costs order was made. The decision binds subordinate courts on the applicable rule 5(2)(a) bail principles.

Key legal issues

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01

Chances of success of the intended appeal

Holding

The intended appeal disclosed substantial merit because some grounds raised questions of law, notably alleged neglect of duty and failure by the first appellate court to consider submissions and authorities.

Reasoning

In a second appeal this Court deals only with matters of law. Grounds alleging that the first appellate court neglected its duty and failed to consider the applicant's submissions and authorities raise questions of law suitable for determination, and were sufficient to show the appeal was arguable without deciding its merits.

02

Exceptional circumstances for bail pending appeal

Holding

Exceptional circumstances existed: the applicant was diabetic, and he would likely have served a substantial part of his five-year sentence by the time the appeal was heard, making eventual success nugatory.

Reasoning

The Court combined the ill-health ground with the passage of time: nearly ten months had been served since the High Court dismissed the appeal, and appeals are heard in order of filing, so the appeal date was uncertain. If the appeal succeeded, time spent in prison could not be restored, making release pending appeal the just outcome.

p. 3
03

Alleged risk of absconding

Holding

The respondent's assertion of flight risk failed for want of evidential support; the applicant had been on bond during trial and attended court faithfully.

Reasoning

A bare deposition unsupported by evidence cannot defeat a bail application. The applicant's record of attendance while on bond during trial rebutted the suggestion that he would abscond if released pending appeal.

p. 3

Legal principles established

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  • On a rule 5(2)(b)/bail pending appeal application the court must consider whether the appeal has substantial merit or overwhelming chances of success, and whether exceptional or unusual circumstances exist such as the sentence or a substantial part of it having been served before the appeal is heard.
  • An unsupported assertion that a convicted applicant is a flight risk is not a basis for denying bail where the applicant attended court faithfully during trial.

Court orders

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  1. 1.The applicant is granted bail pending the hearing and determination of his intended appeal
  2. 2.The applicant shall be released on bond of KSh. 400,000 with a surety of a similar amount or cash bail of KSh. 200,000

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(a)

Cases cited (4)

  • Jivraj Shah v. Republic
    [1986] eKLR
  • Daniel Dominic Karanja v. Republic
    Criminal Application No. Nai 14 of 1986 / [1986] eKLR
  • Somo v Republic
    [1972] EA 476
  • Simon Mwangi Kirika v. Republic
    [2006] eKLR
On appeal from
High Court of Kenya at Kabarnet
Criminal Appeal No. E009 of 2021
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules, 2022

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, "Kosgei v Republic (Criminal Application E002 of 2023) [2024] KECA 148 (KLR)", Case Analysis (2024). Criminal Application (bail pending appeal) arising from intended appeal against Kabarnet High Court Criminal Appeal No. E009 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/148/eng@2024-02-16

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