Nicholus Muema Judah v Republic

3. e. the Appellant/Applicant was also charged and convicted on doubtful, inconsistent and uncorroborated evidence given by the complainant and unconstitutional sentence meted against him. f. the Appellant/Applicant has an active ELC matter whereby he is sued by the complainants herein seeking to evict him from a land he bought from them and if not granted bail, the matter will proceed in his absentia and will cause irreparable damage to him and his young family as they stand to be evicted in his absence. g. the Applicant/ Appellant was prosecuting the matter in the lower trial court while on bond and never absconded court and/or refused to attend court at any time. h. the Applicant/ Appellant has young family and young siblings whom he takes care of and wholly depend on him to take care of them. i. the Respondent will not suffer any prejudice if the application is allowed. j. it is in the interest of the justice to grant the orders sought. The Respondent opposed the application and filed grounds of opposition dated 03/3/2025 as follows: a. That the Applicant/Appellant has not demonstrated in his application that the grounds stated in his petition of appeal are arguable with possible chances of success. b. That the Applicant/Appellant has not demonstrated unusual or exceptional circumstances while may warrant the release of the applicant on bond pending appeal. c. That the previous good conduct of the Applicant/Appellant and hardships he is facing or likely to face do not constitute exceptional circumstances. d. That a solemn assertion by an Applicant that he will not abscond when released as he was out on cash bail during the hearing and determination of the trial and never failed to attend court is not sufficient ground to release a convict on bond pending appeal. e. That an assertion that the Applicant has an active ELC matter that might proceed in his absence is not sufficient ground to warrant a convict be released on bond pending appeal. f. That the Applicant has not demonstrated to this Honourable Court that he is unable to attend to the ELC matter and that the Prison authorities will not be able to assist him to attend to the ELC matter. g. That by failing to demonstrate that the appeal has high chances of success, the Applicant/ Appellant has by extension failed to demonstrate that he will have served a substantial part of the sentence by the time the appeal is heard and determined. 4. The application was canvassed through written submissions. The Applicant’s submissions are dated 10/3/2025 and filed in court on 12/3/2025 while the Respondent’s submissions are dated 20/3/2025. 5. I have duly considered the application, the grounds of opposition and the parties’ respective submissions as well as the attached cited authorities. 6. The only issue before this court is whether the Appellant/Applicant should be admitted to bond pending Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14355/eng@2025-06-25 2

page 2 of 5

7. The right to bail pending Appeal is premised on Section 357 (1) of the Criminal Procedure Code which states that: “ After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal.” 8. Under Article 49 of the Constitution of Kenya, 2010, a person awaiting trial is entitled to bail as a matter of Right. That right can only be taken away where the prosecution demonstrates that there are compelling reasons to deny it. However, bail pending Appeal is at the discretion of the court and hence the onus is on the Applicant to convince the court as to why the discretion should be exercised in his favour (See: Charles Owanga Alouch v DPP[2015]e KLR) 9. In the case of Chimambhai v Republic 1971 EA 343, J. Harris made another observation in such an application when he stated: “ The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases…….” 10. The principles for granting bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles as follows; “ (1) The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail. (2) If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists. (3) The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.” 11. Thus, the Appellant needs to demonstrate that there are exceptional circumstances warranting his release on bail, that the appeal has overwhelming chances of success and that he is likely to have served a substantial part of the sentence before the appeal is heard and determined. 12. The Applicant herein argues that the appeal is likely to succeed on grounds among them that he was convicted and sentenced on defective charges which were not supported by particulars of offence, evidence tendered by the prosecution was inconsistent, doubtful and contradictory and that the Applicant’s defence was disregarded by the trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14355/eng@2025-06-25 3

page 3 of 5

13. In order to ascertain whether the Appellant’s appeal has overwhelming chances of success, one needs to go through the evidence adduced before the trial court and the judgment delivered by the learned trial magistrate but without going into any detail in order not to prejudice the court which will eventually hear the appeal. 14. The Applicant submitted that he is the sole bread winner of his young family and has an ELC matter to defend where he is sued by the complainant’s parents seeking to evict him and his family from his land which he bought from them. 15. In response to the foregoing, the Respondent contends that an assertion that the Applicant has an active ELC matter that might proceed in his absence is not sufficient ground to warrant a convict be released on bond pending appeal. The Applicant has not demonstrated to this Honourable Court that he is unable to attend to the ELC matter and that the Prison authorities will not be able to assist him to attend to the ELC matter. 16. I agree with the Respondent that this argument by the Applicant does not constitute an exceptional or unusual circumstance to warrant the grant of bail pending appeal. 17. I have also perused the trial court’s judgment dated 4th February 2025 delivered by Hon. V. Ochanda which is on record. I note that PW1, the Complainant stated that before the alleged defilement, she had slept with one man but did not tell her mother about it. I also note that in his conclusion, the doctor stated that he felt the minor had been coached in a way to come and lie in the hospital. This goes into whether the ingredient of proof of penetration by the prosecution in the circumstances of this case was proved beyond reasonable doubt. 18. It is the view of this court that the credibility of the evidence of the Complainant and the Doctor who were crucial witnesses in the Prosecution case were in doubt. 19. While being careful not to delve into the merits and demerits of the Appeal. I am convinced that the chances of the Appeal succeeding is overwhelming. 20. The Appellant was sentenced to 15 years imprisonment on 13/2/2025. He is yet to obtain typed proceedings from the trial court to enable him take directions on the disposal of the appeal herein. The Appellant is likely to have served a substantial part of the sentence before the appeal is heard and determined. 21. In the premises therefore, I am persuaded that the Appellant has put forward a case to warrant his release on bail pending appeal as the appeal has overwhelming chances of being successful. I order that pending the hearing and determination of this appeal, the Appellant shall be released on a bond of Ksh.200,000/= in the alternative cash bail of Ksh.50,000/= with two contact persons in both instances. 22. A mention date to be fixed for directions on the Appeal. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 25TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH JUNE 2025 In the presence of : Mr. Mutava................................ for Appellant/Applicant Ms. Agatha...............................for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14355/eng@2025-06-25 4

page 4 of 5

Milly................................. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14355/eng@2025-06-25 5

page 5 of 5