High Court 14382 of 2025

4. Further the appellant made an application to be admitted to reasonable bail and bond terms pending the hearing and determination of the appeal. The grounds of the application are highlighted in the application and the attachments thereto. 5. The Applicant further avers that his Appeal has high chances of success as evidenced by the filed Petition of Appeal and there is the highest probability that the sentence will be quashed. 6. The Applicant also states that he had always attended court and he will do so if he is granted bail pending appeal. 7. The Respondent opposed the application by way of grounds of opposition dated 19th September 2024 as follows: 8. a. That the Appellant/applicant 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 appellant/applicant has not demonstrated unusual or exceptional circumstances which may warrant the release of the applicant on bond pending appeal. c. That the previous good character of the applicant and the 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 if released is not sufficient ground to release a convict on bond pending appeal. e. That by failing to demonstrate that the appeal has high chances of success, the applicant 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. The application was canvassed through written submissions. Both parties complied by filing their respective submissions. Applicant/Appellant’s submissions 9. For the Applicant, it is submitted that Article 49(l)(h) of the constitution provides that: An accused person has the right ... (h) 10. to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released. Section 357(1) of the Criminal Procedure Code provides as follows: “ 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." 11. The Applicant submitted that, from the above-cited law, it is clearly demonstrated that the accused person’s right to bail/ bond upon conviction has not been extinguished though the provision is not in mandatory terms. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 2

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12. Further, the Applicant urged this court to consider the case of Jivrai Shah v Republic [1986) KLR 605; [1986] eKLR, where the Court of Appeal held that: “ There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision in Somo v Republic [19721 E A 476 which was referred to by this court with approval in Criminal Application No NAI 14 of 1986, Daniel Dominic Karania v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued. " 13. From the foregoing, the Applicant submitted that three issues stand out as the test before bail is granted as indicated below: a.Whether the appeal has overwhelming chances of success? 14. On this issue, the Applicant submitted that he has presented a petition with weighty issues for consideration and determination. Among these issues is the defence mounted by the Applicant/ Appellant that he was not at the scene of crime at the time of the commission of the said offence. That he raised a credible alibi defence and proceeded to file submissions in support of his defence however the court ignored the defence and the submissions in totality. 15. Further he submitted that the investigating officers never conducted an identification parade and the Applicant was only identified at the dock thus making the entire prosecution case biased and contravening the rights of the Applicant as enshrined in the constitution. b. There are exceptional or unusual circumstances to warrant the Courts exercise of its discretion. 16. The Applicant submitted under this ambit and reiterated the contents of the application and supporting affidavit and more so the averment that the Appellant is the sole bread winner of his young family. In particular, the ground the Appellant has a newborn who was born a few days before he was sentenced. Pursuant to the best interests of the Appellant’s minor and his family who solely rely on him for their daily upkeep he urged this court should exercise its discretion and grant him bail. 17. In furtherance, he submitted that has never absconded court during the trial and that very reason allowed to have this matter heard and concluded within a record of one year. That this ground suggests that the Applicant is a person who will honour the court directions once admitted to bond terms. c. There is a high probability of the sentence being served before the appeal is heard. 18. The Applicant submitted that his desire in making this application is to halt to the infliction of punishment until he has had a reasonable opportunity to question his conviction and sentencing through an appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 3

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18. The Applicant submitted that by dint of the above arguments, he has provided reasonable arguments to warrant him to be admitted to bail and bond terms pending the hearing and determination of the appeal. Respondent’s submissions 20. 21. For the Respondent, it is submitted that the law regarding bond pending appeal is now settled. The requirements for admission to bond pending appeal have been distilled to three key issues; a. That the applicant has filed an arguable appeal with overwhelming chances of success. b. That the applicant has demonstrated unusual or exceptional circumstances that may persuade the court to exercise its discretion to admit the applicant to bail/bond pending the hearing and determination of his appeal. c. That the applicant is likely to serve his full sentence or a substantial portion thereof which may render the appeal nugatory. The Respondent submitted that, the burden of proof of the above requirements is on the Applicant. The Evidence Act Cap. 80 Laws of Kenya imposes that burden on the Applicant in the following sections; Section 107. Burden of proof. a. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. b. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Section 108. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 22. The Respondent submitted that they had gone through the entire application and the submissions of the Applicant/Appellant and had not seen any demonstration of the requirements particularized in paragraph 21 herein above. The application and the supporting affidavit have scanty information on what transpired in the court below. The Applicant failed to annex a copy of the charge sheet, proceedings and judgment of the court below. Those documents would have provided adequate information to demonstrate whether the Applicant's appeal is arguable and has a high chance of success. In the absence of those documents the court is not in a position to know whether the appeal filed by the Applicant has a chance of success. 23. The Respondent cited the case of Masika v Republic (Criminal Appeal (Application) E003 of 2021) [2024] KECA 1452 (KLR) (18 October 2024) (Ruling) Neutral citation: [2024] KECA 1452 (KLR) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 4

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where the Court of Appeal observed that the application had very little details and held at paragraph 6 and 7 of the ruling as follows; “ In this case, the applicant has only made bare assertions without demonstrating any unusual circumstances. He has not availed a copy of the judgment of the High Court from which he intends to appeal, nor has he identified any issue of law or demonstrated that he has an appeal with overwhelming chances of success. Although he has stated that he suffers a chronic medical condition which requires specialist regular follow-up, he has not availed any documents in support of the alleged medical condition” (Emphasis added). In the circumstances the applicant has failed to demonstrate any exceptional circumstances, nor has he demonstrated that his appeal has overwhelming chances of success. We find no merit in his application and the same is dismissed”. 24. The Respondent further submitted that the Applicant has failed to demonstrate unusual or exceptional circumstances which may warrant this Honourable Court to invoke its discretion to grant bond pending hearing and determination of the appeal. Had the Applicant annexed a copy of the judgment and sentence of the court below, it could have been easy for the court to know if there was a possibility of the Applicant serving his term of imprisonment or a substantial part thereof before his appeal is heard and determined. 25. That the Applicant has insinuated at paragraphs 9 and 10 of his supporting affidavit that he has a young family and siblings who solely depend on him for upkeep and claimed that, that provided an exceptional circumstance which the court should consider together with the fact that he was admitted to bond in the court below and he never absconded. It is was the Respondent’s submission that such insinuation or declaration do not reveal exceptional circumstances. The Respondent relied on the case of Nanga v Republic (Criminal Application E008 of 2023) [2024] KECA 1490 (KLR) (25 October 2024) (Ruling) Neutral citation: [2024] KECA 1490 (KLR) The court held at paragraphs 16 and 17 as follows; “ 16. Two other grounds proffered by the applicant are similarly tenuous and do not cogently demonstrate special circumstances. As we pointed out above, the fact that an applicant enjoyed bail pending trial is consequentially irrelevant in our consideration of the question whether he is entitled to bail pending appeal. As for the argument that the applicant should be granted bail pending appeal on medical grounds, the alleged medical conditions have not been demonstrated since no current medical report was attached; and neither has it been demonstrated that the Prison's facilities are unable to deal with those conditions. Additionally, as the State pointed out, even the claimed medical condition is contradictory: diabetes is alleged in the supporting affidavit; while hypertension is alleged in the grounds on the face of the application — perhaps a clear indication that the claims are merely pre- textual. 17. Finally, the applicant argues that he would have served a significant portion of his sentence if bail pending appeal is not granted. It is true that where an applicant demonstrates that he is likely to serve the whole of her sentence or a substantial portion of it, that would likely constitute unusual and exceptional circumstances warranting the grant of bail pending appeal. In the present case, the applicant was sentenced to fifteen years imprisonment. We do not think the risk he articulates is credible: objectively aware of our docket, he is unlikely https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 5

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to serve a substantial or the whole of his sentence before his appeal is heard and determined. This Court has ordinarily either granted bail pending appeal or expedited appeals where applicants before it were serving shorter sentences, typically under five years (emphasis added). This applicant cannot benefit from that argument.” 26. The Respondent submitted that it is crystal clear from the above authorities that the Applicant has failed to demonstrate the fundamental requirements for the grant of bond pending appeal and urged this court to uphold their submissions and dismiss the applicant's application dated 21st June, 2024. Analysis and determination 27. Bond or bail pending Appeal is provided for under Section 357 of the Criminal Procedure Code (CPC). It provides; “ 357. Admission to bail or suspension of sentence pending appeal 1. 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: Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in Sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers. 2. If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced. 3. The Chief Justice may make rules of court to regulate the procedure in cases under this section.” 28. It is clear that this court has powers to grant bond/bail pending Appeal. 29. The principles for the grant or denial of bond/bail pending Appeal were set out in Jivraj Shah v Republic (supra) , Ademba v Republic -Criminal Appeal No. 70 of 1983 and Dominic Karanja v Republic (1986) eKLR 30. Thus, the considerations for the court to grant or deny bond pending appeal are; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 6

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a. That the Appeal has overwhelming chances of success. b. The previous good character of the Applicant. c. The existence of exceptional or unusual circumstances. d. The sentence or substantial part of it will have been served by the time the Appeal is heard. 31. I have considered the application for bond/bail pending appeal, the Petition of Appeal and the submissions filed by the Parties. Although the Applicant argues that he raised a defence of alibi which the trial court did not consider and further that the identification parade was never conducted which are issues of law, this court is unable to verify the same in the absence of a copy of the judgement by the trial court. Had the Applicant annexed a copy of the judgment and sentence of the court below, it could have been easy for the court to know if the trial court considered the two issues of law raised by the Applicant. 32. At this stage, the court ought to be cautious not to try and determine the Appeal. This should await the appropriate time. 33. The grounds adduced by the Applicant call for the court to re-analyse and re-evaluate the evidence as it is obliged to (see Okeno v Republic). 34. In my opinion, there are no exceptional or unusual circumstances that would necessitate the grant of the orders sought. The Applicant has not adduced any evidence to demonstrate that he is the sole bread winner of his young family. In particular, the ground that the Applicant has a newborn who was born a few days before he was sentenced 35. Whereas the previous good record of the Applicant is a ground for consideration, that alone is not sufficient to warrant the grant of the orders sought. 36. It must be remembered that during the trial, the Applicant was presumed to be innocent, right now, he has been convicted by a court of competent jurisdiction. Thus, the application of Article 49 (1) (h) of the constitution does not apply to the Applicant. 37. As regards the possibility of the Applicant serving his term of imprisonment or a substantial part thereof before his appeal is heard and determined, at present, this court is handling Appeals at a very exceptional rate. There are really no unreasonable delays in determining the same. The Applicant was only convicted in May 2024, to serve a sentence of 15 years. 38. I am of the opinion that this is an Appeal that can be heard and determined in the shortest time possible. 39. Consequently, I disallow the application and make the following orders. 40. a. The Petition of Appeal annexed to the supported affidavit shall be deemed to be properly filed and the same is admitted for hearing. b. That through the intervention of this court’s Deputy Registrar, the Lower Court file proceedings to be availed forthwith to the Appellant’s counsel to enable him to prepare the Record of Appeal within the shortest period possible. A mention date to be fixed to confirm compliance and for directions on the disposal of the appeal DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 18TH DAY OF MARCH, 2025. NOEL I. ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 7

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JUDGE In the presence of : In person.......................... Applicant Agatha........................................ for Respondent Milly Grace................................ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14382/eng@2025-03-18 8

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