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Case Brief · caselaw.co.ke
High CourtDismissedCriminal Appeal (Bail Pending Appeal) Application dated 3rd January 2019

Joseph Kimani Kariuki v Republic

High Court of Kenya
2 June 2020
GNG. W. Ngenye-Macharia
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To get bail while appealing, you must prove your case has a high chance of success and that your health cannot be managed in prison.

What this practically means

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Executive summary

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The Applicant was convicted in the Chief Magistrates Court at Kibera on six counts: conspiracy to defraud contrary to Section 317 of the Penal Code, four counts of making a document without authority contrary to Section 357(a), and obtaining money by false pretences contrary to Section 313. He was sentenced to three years' imprisonment on counts I and VI and seven years on each of counts II to V, all running concurrently. The prosecution case concerned the defrauding of CFC Stanbic Bank of Kshs. 13,700,000 through a loan obtained in the name of George Jack Tobias. By a Notice of Motion, the Applicant sought admission to bail pending appeal and/or suspension of his sentence, citing an appeal with overwhelming chances of success and urgent medical needs following a motorcycle accident, including chest pain, blood in stool, and pending OGD and colonoscopy tests. The Respondent, through learned state counsel Miss Ndombi, opposed the application, relying on Jivraj Shah v Republic and Chimambai v Republic, and contending that identification evidence was strong and that the Applicant's illness could be managed in prison. Applying Section 357(1) of the Criminal Procedure Code and the Jivraj Shah principles, the court found the appeal had not demonstrated overwhelming chances of success, noting that seven prosecution witnesses identified the Applicant as Tobias and that expert document evidence linked him to the transaction. The court held that questions of identification were best canvassed at the hearing of the appeal. On health, applying Dominic Karanja v Republic, the court found the condition was being managed in prison and did not constitute exceptional or unusual circumstances. The application was dismissed, with directions to the Deputy Registrar to expedite the availing of the lower court record and the setting down of the appeal for directions.

Key legal issues

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01

Whether the appeal demonstrated overwhelming chances of success

Holding

The court was not convinced the appeal had chances of success on the grounds raised; identification issues were best canvassed at the hearing of the appeal

Reasoning

Seven prosecution witnesses testified that the Applicant presented himself as George Jack Tobias, and the document examiner's expert evidence linked the Applicant's signatures to the transaction documents. The court held that questions of identification and standard of proof could only be resolved at the full hearing of the appeal, not on a bail application.

p. 2
02

Whether the Applicant's medical condition amounted to exceptional or unusual circumstances

Holding

The medical condition did not qualify as an exceptional circumstance because it was being managed in prison and there was no proof it had persisted or worsened

Reasoning

The Applicant had been treated at Kenyatta National Hospital after incarceration and was scheduled for further tests from prison, showing his condition could be managed. The prison report recommending prompt tests did not establish that bail was the only way to manage the condition, absent cogent and specific proof of deterioration.

p. 2

Legal principles established

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  • Bail pending appeal requires exceptional or unusual circumstances, including a demonstration that the appeal has overwhelming chances of success; ill-health qualifies only where the prison lacks facilities to manage the condition

Court orders

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  1. 1.The Applicant's Notice of Motion dated 3rd January 2020 is dismissed
  2. 2.The Deputy Registrar to liaise with the executive officer at the Chief Magistrates Court at Kibera to ensure the lower court record is promptly availed once court operations are scaled up
  3. 3.The Deputy Registrar to ensure a date for directions on the hearing of the appeal is set down on priority basis
On appeal from
Chief Magistrates Court at Kibera
Not stated in the judgment
Jurisdiction invoked
Section 357(1) of the Criminal Procedure Code

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, "Joseph Kimani Kariuki v Republic", Case Analysis (2020). Criminal Appeal (Bail Pending Appeal) Application dated 3rd January 2019. Source:

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