Imanyara v Republic
The bottom line
#Kenya's High Court ruled that a refused bail application cannot simply be retried before another judge; you must bring genuinely new evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a renewed bail application is a rehearing
It is not a rehearing; the earlier refusal is the starting point and any new discretion must rest on new matter.
The judge held that bail orders under section 123(3) are final interlocutory orders with no appeal, so judge-shopping would amount to judges sitting in appeal on each other. The proper course is a fresh application supported by new material, which is then weighed against the reasons for the earlier refusal.
Entitlement to move bail before every High Court judge
Rejected: an applicant cannot trail his coat before every judge; only a fresh application on new matter is permissible.
Counsel produced no authority for the proposition. The CPC provides no appeal from section 123(3) bail orders, confirming the judge's order is final on the interlocutory point. The court left open whether new matter must go before the same judge.
Effect of medical condition on bail and custody
The fits were real and inadequately manageable in remand prison, but were controllable at Kenyatta National Hospital, so custody there could continue and bail was refused on that condition.
The CAT Scan, EEG and blood tests were normal and the applicant stabilised in hospital under anticonvulsant medication. The judge was not satisfied the prison could provide necessary observation, yet found the condition not so serious that it could not be managed at the hospital, his stated test.
Strength of prosecution case as a bail consideration
Following Chesoni J in Nganga v Rep, strength of the prosecution case may be considered, but only in clear cases; speculation was irrelevant and nothing before the court warranted it here.
The court stressed that the sole legal point argued (consent to prosecute) had already been ruled against, and that speculation about the likelihood of success was totally irrelevant. The comparison was between the applicant's suffering and the danger of reoffending.
Legal principles established
#- A prior refusal of bail is the starting point; any fresh discretion to grant bail must be based on new matter presented to the court.
- A section 123(3) High Court bail order is final on an interlocutory matter with no appeal; an applicant may not shop the application between judges but may bring a fresh application founded on new matter.
- Medical grounds may justify bail where continued remand is unfair or impracticable; the test is whether the medical problem can be dealt with while in custody.
Court orders
#- 1.Application for bail dismissed on condition that Mr Imanyara remain in custody at Kenyatta National Hospital
- 2.Liberty to make a further bail application if the hospital authorities decide he should not remain at Kenyatta National Hospital
- Jurisdiction invoked
- Section 123(3) Criminal Procedure Code (cap 75) - original jurisdiction of the High Court to allow or refuse bail
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Bishop v Republic6 Oct 2011
Cite this brief
#Cite this brief
Caselaw, "Imanyara v Republic", Case Analysis (1991). Criminal Application No 190 of 1991. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.