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High CourtDismissedNotice of Motion dated 18th March 2020 (Criminal Appeal from Maviko Chief Magistrate's Court Criminal Case No. 783 of 2013)· [2020] KEHC 9811 (KLR)

Permuia Ole Robia & 2 Others v Republic

High Court of Kenya
16 June 2020
GOG V Odunga
2,463 words in judgment
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The bottom line

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To get bail during an appeal, you must prove exceptional circumstances or a very high likelihood of winning.

What this practically means

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Executive summary

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The appellants were convicted in Maviko Chief Magistrate's Court Criminal Case No. 783 of 2013 of two counts of robbery with violence contrary to section 296(2) of the Penal Code and an alternative count of handling stolen goods contrary to section 322(2), sentenced to 30 years on each robbery count and 4 years on the alternative count, to run concurrently. They moved the High Court by Notice of Motion dated 18th March 2020 for bail pending appeal, citing alleged high chances of success, failure to abscond trial, and ill-health under a certificate of urgency. The appellants argued conviction on both the principal and alternative counts was erroneous, the charge was defective, identification fell below required standards, and their defence was ignored. The Republic opposed, contending the case was proved beyond reasonable doubt, the applicants were flight risk, and no exceptional circumstances existed, relying on Jivraj Shah v Republic and Dominic Karanja v Republic. Odunga J held that a different, stricter test applies to bail pending appeal than to bail pending trial: the applicant must show exceptional or unusual circumstances, overwhelming chances of success on a substantial point of law, or that a substantial part of the sentence will be served before the appeal is heard. The court found the appeal not frivolous because the appellants were convicted on both the main and alternative counts, but held this alone was not exceptional. Ill-health unsupported by medical documents was not exceptional, prisons having medical facilities. The application was dismissed and the appellants directed to expedite the hearing of their appeal. The ruling was delivered via Skype videolink due to COVID-19 restrictions.

Key legal issues

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01

Test for bail pending appeal

Holding

The court exercises discretion judicially considering (a) overwhelming chances of success, (b) exceptional or unusual circumstances, and (c) probability of sentence being served before the appeal is heard

Reasoning

The court distinguished Article 49(1)(h) bail pending trial from bail after conviction under section 357(1) CPC, relying on Masrani v R and Charles Owanga Aluoch v DPP. After conviction the sentence runs and the presumption is of proper conviction, so the applicant must demonstrate exceptional or unusual circumstances or overwhelming probability of success on a substantial point of law.

p. 3
02

Conviction on both principal and alternative counts

Holding

Conviction and sentence on both the main counts and the alternative count renders the appeal not frivolous, but that alone is not an exceptional circumstance

Reasoning

The court found the appeal not frivolous because the appellants were convicted on both the robbery counts and the alternative handling count. However, following Somo v R, non-frivolousness is of no consequence on its own in support of the application, though frivolousness would favour rejection.

p. 3
03

Ill-health as exceptional circumstance

Holding

Ill-health per se is not an exceptional or unusual circumstance in every case; prisons have medical facilities, and no medical documents were attached

Reasoning

Following Daniel Dominic Karanja v Republic, the court held that hardship and ill-health are not exceptional or unusual factors. The applicants claimed urgent medical need under a certificate of urgency but attached no medical documents, and the prisons department is well equipped with free medical facilities.

p. 3

Legal principles established

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  • A different, stricter test applies to bail pending appeal than bail pending trial; the applicant must show exceptional or unusual circumstances or overwhelming chances of success

Court orders

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  1. 1.Application for bail pending appeal dismissed
  2. 2.Applicants directed to expedite the process of the hearing of their appeal

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 322(2)
  • Criminal Procedure Codesection 357(1)
  • Constitution of KenyaArticle 49(1)(h)

Cases cited (12)

  • Jivraj Shah vs. Republic
    (1986) KLR 605; [1986] eKLR

    Principal considerations for granting bail pending appeal: exceptional or unusual circumstances and overwhelming chances of success

  • Paul Kanai & Another vs. Republic
    (2017) eKLR
  • Dominic Karanja vs. Republic
    [1986] KLR 612

    Flight risk of applicants serving many years in prison

  • Masrani vs. R
    [1060] EA 321

    Different principles apply after conviction; the sentence starts to run from conviction

  • Charles Owanga Aluoch vs. Director of Public Prosecutions
    [2015] eKLR

    Right to bail after conviction is at the court's discretion and not absolute

  • Mutua vs. R
    [1988] KLR 497

    A convicted person is undergoing punishment which stands until set aside on appeal

  • Somo v Republic
    [1972] EA 476

    Overwhelming probability of success required; presumption of proper conviction; good character not exceptional

  • Ademba vs. Republic
    [1983] KLR 442

    Overwhelming chances of success as a factor

  • Raghbir Singh Lamba vs. R
    [1958] EA 37

    Exceptional or unusual circumstances

  • Chimabhai vs. R
    [1971] EA 343

    High probability of sentence being served before appeal heard

  • R vs. Kanji
    [1946] 22 KLR

    What constitutes exceptional circumstances; delay coupled with other factors

  • Daniel Dominic Karanja v Republic
    [1986] eKLR (Criminal Application No NAI 14 of 1986)

    Ill-health, good character and hardship are not exceptional or unusual factors

On appeal from
Maviko Chief Magistrate's Court
Criminal Case No. 783 of 2013
Jurisdiction invoked
Section 357(1) of the Criminal Procedure Code; Article 49(1)(h) of the Constitution

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, "Permuia Ole Robia & 2 Others v Republic", Case Analysis (2020). Notice of Motion dated 18th March 2020 (Criminal Appeal from Maviko Chief Magistrate's Court Criminal Case No. 783 of 2013). Source:

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