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Court of AppealDismissedCriminal Application (not numbered in judgment; dated 30th September 2024)

Mutegi & another v Republic (Criminal Appeal (Application) 100 of 2023) [2025] KECA 942 (KLR)

Court of Appeal of Kenya
23 May 2025
2,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused bail pending appeal, confirming that convicted persons must prove exceptional circumstances, not just claim court delays.

What this practically means

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Executive summary

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The applicants, convicted of manslaughter and sentenced to fifteen years' imprisonment by the Chief Magistrates Court at Chuka on 23rd August 2022, with the conviction and sentence upheld by L. Gitari, J at the High Court, Chuka on 21st July 2023, applied to the Court of Appeal at Nyeri for admission to reasonable bail or bond terms pending the hearing of their appeal. They invoked Articles 19, 22, 25, 39, 48, 49, 50, 51 and 159(2)(d) of the Constitution and Order 51 Rule 1 of the Civil Procedure Rules. Their sole asserted exceptional circumstance was an unsworn allegation that the Court's registry had informed them their 2023 appeal would await the disposal of appeals filed between 2021 and early 2023, creating apprehension of inordinate delay. The State opposed, arguing no exceptional circumstances and a risk of absconding. The court, per a single judgment of Justices Lesiit, Ali-Aroni and Odunga, restated that bail pending appeal is discretionary, not a right, that a convict lacks the presumption of innocence, and that the burden rests on the applicant to prove unusual or exceptional circumstances, including an overwhelming probability of success on appeal or that a substantial part of the sentence will be served before the appeal is heard. Finding the registry allegation unsupported by any annexure, the record of appeal unavailed so merits could not be assessed, and no substantial part of a fifteen-year sentence likely to be served before hearing, the court dismissed the application with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the applicants should be admitted to reasonable bail or bond terms pending the hearing and determination of their appeal
  2. 2.Whether the alleged inordinate delay in hearing the appeal constitutes unusual or exceptional circumstances warranting bail pending appeal

Key legal issues

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01

Threshold for bail pending appeal

Holding

A convicted person seeking bail pending appeal bears the burden of proving unusual or exceptional circumstances; bail is discretionary and not a constitutional right for a convict.

Reasoning

Relying on Epungure v Republic, Mary Ngechi Ng'ethe v Republic, Jivraj Shah, Dominic Karania and the Bail and Bond Policy Guidelines, the court held that conviction extinguishes the presumption of innocence, so sufficient reasons must exist before a convict may be released pending appeal. The Guidelines require an 'overwhelming probability' that the appeal will succeed.

p. 4
02

Whether case backlog/alleged registry information constitutes exceptional circumstances

Holding

An unsubstantiated allegation that the registry indicated a long wait for a hearing date does not constitute exceptional circumstances warranting bail pending appeal.

Reasoning

The applicants asserted they were informed their 2023-filed appeal would await earlier appeals, but annexed no evidence supporting that claim. Even assuming delay, they serve a 15-year sentence and there is no likelihood they will serve a substantial part of it before the appeal is determined.

p. 5
03

Whether the appeal has arguable prospects of success

Holding

Without the record of appeal, the court could not assess whether the appeal has high chances of success, so that limb failed.

Reasoning

The applicants asserted the appeal had merit, but the record of appeal was not availed to the court, leaving it unable to comment on a prima facie basis on the chances of success. Consequently, neither exceptional circumstances nor prospects of success were established.

p. 5

Legal principles established

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  • Bail pending appeal is discretionary, not a right; a convicted person no longer enjoys the presumption of innocence and must demonstrate unusual or exceptional circumstances to obtain bail pending appeal.
  • The burden lies on the convicted person to demonstrate unusual or exceptional circumstances, including that the appeal has overwhelming probability of success or that a substantial part of the sentence will have been served by the time the appeal is heard.

Court orders

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  1. 1.The application dated 30th September 2024 is dismissed
  2. 2.No order as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya, Chuka
not stated in judgment
Jurisdiction invoked
Articles 19, 22, 25, 39, 48, 49, 50, 51 and 159(2)(d) of the Constitution of Kenya; Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Admission to reasonable bail or bond terms pending the hearing and determination of the appeal

No unusual or exceptional circumstances shown; alleged registry information unsupported; no likelihood of serving a substantial part of the 15-year sentence before appeal hearing; appeal merits not demonstrable as record of appeal not availed

p. 5

Direction that the appeal be set down for hearing at the earliest convenient date

Application dismissed in its entirety

Costs

We shall make no order as to costs.

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.

In considering all the above-mentioned cases and principles therefrom, it is trite that bail pending appeal is not an outright right but one that is in the discretion of the Court.
p. 4Discretionary nature of bail pending appeal
bail pending appeal will only be granted in rare and exceptional circumstances.
p. 4Threshold for bail pending appeal
Even supposing there may be some delay in hearing their appeal, they are serving a sentence of 15 years’ imprisonment there is no likelihood that they will serve a substantial part of their sentence before the appeal is determined.
p. 5Substantial-part-of-sentence test not met
The result is that the application lacks in merit and is dismissed. We shall make no order as to costs.
p. 5Final orders and 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, "Mutegi & another v Republic (Criminal Appeal (Application) 100 of 2023) [2025] KECA 942 (KLR)", Case Analysis (2025). Criminal Application (not numbered in judgment; dated 30th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/942/eng@2025-05-23

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