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High CourtDismissedMotion dated 7th December 2018

Re: Bail Pending Appeal - 1st Applicant (Appellant)

High Court of Kenya
6 March 2019
FGF. Gikonyo
788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Getting bail while appealing a conviction is extremely difficult and requires proving exceptional circumstances or a very strong chance of winning the appeal.

What this practically means

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Executive summary

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The 1st Applicant, convicted and sentenced by a court of competent jurisdiction, moved the High Court under Section 357(1) of the Criminal Procedure Code seeking release on bail pending appeal. She argued exceptional circumstances existed: the appeal had overwhelming chances of success, would take long to hear, she risked losing her managerial job at Parl Limited, her release would help decongest prisons, and she was not a flight risk having attended court throughout a trial during which she was on bond for over six years. The respondent opposed, submitting there were no exceptional or unusual circumstances and no proof thereof, relying on Jivraj Shah v Republic. The court, per F. Gikonyo J, applied the Jivraj Shah criteria and Dominic Karanja v Republic, holding that a convicted person cannot benefit from the presumption of innocence and that bail pending appeal requires exceptional or unusual circumstances or overwhelming chances of success on a substantial point of law. Perusing the petition of appeal and the lower court file, the judge found no overwhelming chances of success and no exceptional or unusual circumstances established by evidence. Decongestion of prisons, though a noble administrative act, is not granted as a matter of course. The application was found unmeritorious and dismissed. The court directed that the appeal be fast tracked, the record of appeal be prepared and served within 14 days, and directions be given on a date to be appointed by the court. No costs order was made.

Key legal issues

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01

Test for bail pending appeal

Holding

The Jivraj Shah test applies: exceptional or unusual circumstances, or prima facie overwhelming chances of success on a substantial point of law, must be shown.

Reasoning

The court adopted the criteria in Jivraj Shah v Republic and Dominic Karanja v Republic, holding that a convicted person loses the presumption of innocence and must demonstrate exceptional circumstances or substantial merit in the appeal. Decongestion of prisons, prior good character, family hardship and assertions of non-absconding are not exceptional circumstances.

p. 1
02

Whether the application met the test

Holding

The application failed; no exceptional circumstances or overwhelming chances of success were demonstrated by evidence.

Reasoning

The judge perused the petition of appeal and the lower court file and found nothing demonstrating overwhelming chances of success. Decongestion of prisons, though noble, is not granted as a matter of course and must rest on proper grounds in appropriate cases.

p. 2

Legal principles established

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  • A convicted person may not benefit from the presumption of innocence; bail pending appeal requires exceptional or unusual circumstances or overwhelming chances of success on a substantial point of law.

Court orders

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  1. 1.The application for bail pending appeal is dismissed
  2. 2.The appeal be fast tracked
  3. 3.Record of appeal be prepared and served in 14 days
  4. 4.Directions shall be given on a date to be appointed by the court
Jurisdiction invoked
Section 357(1) of the Criminal Procedure Code CAP 75 Laws of Kenya

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, "Re: Bail Pending Appeal - 1st Applicant (Appellant)", Case Analysis (2019). Motion dated 7th December 2018. Source:

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