Benard Kakai Chesoli v Republic
The bottom line
#Kenya's Court of Appeal refused bail to a convicted man, ruling family hardship and good conduct during trial don't justify release pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Threshold for bail pending appeal
The applicant must demonstrate both overwhelming chances of success and exceptional or unusual circumstances; a higher threshold applies than for pre-conviction bail.
The court distinguished the position of a convicted applicant from an accused enjoying the presumption of innocence under Article 50(2)(a). The burden rests on the applicant to justify the exercise of judicial discretion. Applying Somo v Republic, Jivraj Shah v Republic and Daniel Dominic Karanja v Republic, the court confirmed that overwhelming chances of success on a substantial point of law and exceptional or unusual circumstances must both be shown.
Whether the intended appeal disclosed overwhelming chances of success
At the interlocutory stage the court could not conclude that the appeal had overwhelming chances of success, since the grounds challenged findings of fact properly interrogated only at the full hearing.
The court perused the petition of appeal and the trial proceedings. The grounds substantially challenged the High Court's findings of fact and its evaluation of evidence. Such matters can only properly be examined at the full hearing when the entire record is subjected to comprehensive scrutiny, so the court was not persuaded prima facie of overwhelming chances of success.
Whether exceptional or unusual circumstances existed
Compliance with bond terms during trial, family hardship and the disruption of imprisonment are ordinary consequences of lawful conviction and do not amount to exceptional or unusual circumstances.
The Applicant relied on his compliance with bond terms during trial and his status as a family person likely to suffer hardship. The court held such matters may invite sympathy but fall within the ordinary consequences attendant upon lawful conviction and sentence, and compliance with bond is expected of every accused person, so they cannot ground release after conviction.
Whether the Applicant would serve a substantial part of the sentence before the appeal is heard
The court was not persuaded of such a likelihood, noting its ability to expedite the hearing to protect the right of appeal.
Considering the 10-year sentence, the court found no demonstration of a likelihood that a substantial part would be served before hearing. It noted it retains the ability to expedite the appeal so that the Applicant's right of appeal is not prejudiced by delay, and accordingly directed fast-tracking and priority directions before the Deputy Registrar.
Legal principles established
#- An applicant for bail pending appeal, unlike an accused awaiting trial, no longer enjoys the constitutional presumption of innocence and bears the burden of demonstrating circumstances justifying the exercise of judicial discretion in his or her favour.
- Bail pending appeal may only be granted where there are exceptional or unusual circumstances and where it appears prima facie that the appeal is likely to succeed on account of some substantial point of law.
- Previous good character, hardship to the applicant's family, and a mere assertion that the applicant will not abscond are not exceptional or unusual circumstances for bail pending appeal.
- Compliance with bond terms before conviction cannot, without more, constitute a basis for release after conviction.
Court orders
#- 1.The Notice of Motion dated 3rd December 2025 seeking bail pending appeal is dismissed
- 2.The appeal shall be fast-tracked and directions shall issue before the Deputy Registrar regarding admission of the appeal and hearing thereof on a priority basis
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Sections 3(1) & (2), 3A & 3B of the Appellate Jurisdiction Act (Cap 9); Sections 124 & 379 of the Criminal Procedure Code (Cap 75); Rules 5(2)(a) and 44(1) of the Court of Appeal Rules, 2022; Articles 49(1)(f) and 51 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Kakai Chesoli v Republic", Case Analysis (2026). Criminal Appeal (Notice of Motion dated 3rd December 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/986/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.