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Court of AppealDismissedCriminal Appeal No. 292 of 2022 (Bail Pending Appeal Application dated 30th January 2024)· [2025] KECA 531 (KLR)

Chesoto v Republic (Criminal Application 292 of 2022) [2025] KECA 531 (KLR)

Court of Appeal of Kenya
21 March 2025
ASAsike-MakhandiaHOH. A. OmondiLKL. Kimaru
1,222 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a convicted person's bid for bail pending appeal because he proved neither exceptional circumstances nor his appeal's chances of success.

What this practically means

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Executive summary

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The applicant, Victor Masai Chesoto, was convicted and sentenced to death for robbery with violence contrary to section 296(2) of the Penal Code, with further imprisonment terms on undisclosed counts, by the High Court in Bungoma HCRA No. 78 of 2015 (Aroni, J.). His appeal to the Court of Appeal is pending as Kisumu Criminal Appeal No. 292 of 2022. By a Notice of Motion dated 30th January 2024 he sought bail pending appeal, arguing that the appeal was arguable with high chances of success and that his deteriorating health - weakness, poor medical attention and inability to eat prison food - might cause his death before the appeal was heard. The respondent opposed, contending there were no exceptional circumstances, no demonstration of overwhelming chances of success, and no medical records evidencing an imminent threat of death. The Court, delivering a single unanimous judgment at Kisumu (Asike-Makhandia, H. A. Omondi and L. Kimaru, JJJA), reaffirmed that bail pending appeal is discretionary and requires exceptional or unusual circumstances, that there is no constitutional right to bail after conviction since the presumption of innocence under Article 49 lapses upon conviction, and that an applicant alleging overwhelming prospects of success must place before the court material such as a memorandum of appeal. Finding no memorandum of appeal exhibited, no medical reports supporting the ill-health claim, and no demonstration that prison medical facilities were inadequate, the Court dismissed the application. The appeal itself remains pending before the Court; the decision below was not disturbed.

Key legal issues

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01

Whether exceptional circumstances existed to justify bail pending appeal

Holding

No exceptional or unusual circumstances were demonstrated; the appellant's claims of ill-health were unsupported by medical reports and he did not show that prison medical facilities were inadequate.

Reasoning

The court reaffirmed the Jivraj Shah and Dominic Karanja principles that bail pending appeal requires exceptional or unusual circumstances or overwhelming chances of success. The applicant asserted he was sickly and might die before the appeal was heard, but produced no medical reports, and did not demonstrate that medical facilities in prison could not treat his ailment. Compliant conduct of bail below is likewise not exceptional.

p. 3
02

Whether Article 49(1)(h) of the Constitution entitles a convicted person to bail pending appeal

Holding

Article 49(1)(h) does not apply; the presumption of innocence ends upon conviction by a court of competent jurisdiction.

Reasoning

The court distinguished the constitutional right to bail pending trial from the purely discretionary jurisdiction to grant bail pending appeal. Having been convicted, the applicant can no longer invoke the presumption of innocence underpinning Article 49; his remedy lies in the Court of Appeal Rules, which requires exceptional circumstances.

p. 3
03

Whether the appeal has high chances of success

Holding

The court could not assess arguability because no memorandum of appeal was exhibited, and engaging in a preview of the appeal would embarrass the bench that hears it.

Reasoning

While an applicant may ground bail on overwhelming chances of success, the court must be convinced of such success without conducting a preview of the appeal. The absence of a memorandum of appeal meant the court could not consider whether the appeal was arguable, so this ground also failed.

p. 3

Legal principles established

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  • There is no constitutional right to bail pending appeal; bail under Article 49 applies to persons awaiting trial, and after conviction release pending appeal is a discretionary remedy requiring exceptional or unusual circumstances.
  • An applicant for bail pending appeal on the ground of arguability must place before the court the memorandum of appeal or equivalent material; a bare assertion that the appeal has high chances of success is insufficient.

Court orders

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  1. 1.The Notice of Motion application dated 30th January 2024 seeking bail pending appeal is dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Constitution of Kenya, 2010Article 49(1)(h)
  • Court of Appeal RulesRule 5(2)(a)
  • Court of Appeal RulesRule 61

Cases cited (4)

  • Charles Owanga Oluoch vs. The DPP
    [2015] eKLR
  • Dominic Karanja vs. Republic
    [1986] KLR 612
  • Jivraj Shah vs. R
    [1986] KLR 605
  • Peter Hinga Ngotho vs. Republic
    [2015] eKLR
On appeal from
High Court of Kenya
Bungoma HCRA No. 78 of 2015
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules (criminal proceedings, bail pending appeal)

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, "Chesoto v Republic (Criminal Application 292 of 2022) [2025] KECA 531 (KLR)", Case Analysis (2025). Criminal Appeal No. 292 of 2022 (Bail Pending Appeal Application dated 30th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/531/eng@2025-03-21

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