Benard Musembi Kakiulu v Republic

3. The application is further supported by a supporting affidavit sworn by the Applicant in September 2024. 4. The Respondent opposed the application and filed grounds of opposition dated 28/10/2024 as follows, that: a. 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. the Applicant/Appellant has not demonstrated unusual or exceptional circumstances while may warrant the release of the applicant on bond appeal. c. the previous good character of the Applicant/Appellant and hardships he is facing or likely to face do not constitute exceptional circumstances. d. a solemn assertion by an Applicant that he will not abscond when released is not sufficient ground to release a convict on bond pending appeal. e. an assertion that the High Court station has heavy work load is not sufficient ground to warrant a convict be released on bond pending appeal. f. 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. 5. The application was canvassed through written submissions. The Applicant’s submissions are dated 23/9/2024 filed by the law firm of Evans Muli & Co Advocates while the Respondent’s submissions are dated 12/3/2025 filed by Ms. Agatha Abang for the prosecution. 6. I have duly considered the application, the grounds of opposition and the parties’ respective submissions as well as the attached cited authorities. 7. The only issue before this court is whether the Appellant/Applicant should be admitted to bond pending Appeal, the Respondent having no opposition to the prayer for leave to amend the Petition of Appeal. 8. The Applicant herein states that the appeal has high chances of success. Counsel for the Appellant seems to have based his submissions under Article 49(1) (h) of the Constitution, 2010 which provides for the right of an accused person to be released on bond/bail pending charge or trial unless there are compelling reasons. The Appellant’s counsel has also cited Article 50 (2) of the Constitution which deals with presumption of innocence until proven guilty. 9. This court wishes to remind Counsel for the Applicant/Appellant that the cited provisions of the Articles of the Constitution of Kenya, 2010 do not apply to this case at this stage. The Applicant was presumed innocent and was granted bond pending the hearing and determination of the case before the trial court pursuant to the provisions of the cited Articles 49(1)(h) and 50 (2) of the Constitution. Following the conviction and sentence thereafter by the trial court, the Appellant’s presumption of innocence was discharged. 10. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14396/eng@2025-06-25 2

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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.” 10. 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) 10. 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.” 14. 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. 15. 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. 16. The Applicant submitted that he is a family man with a wife and two children and the sole breadwinner of the family and that he has a permanent place of abode being Matungulu Sub-County within Machakos County. He further deponed that during the hearing of the lower court case he was out on bond and had never at any time failed to attend court and as such if he released on bail pending appeal, he will continue to attend court and abide by any terms that this Honourable court may give. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14396/eng@2025-06-25 3

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17. It is submitted further that the Applicant has an arguable appeal which hashigh chances of success and it is only fair and just that he be released on bail/bond pending the hearing and determination of the appeal lest he serve the whole or substantial part of the sentence and that its now over a year since he started serving the sentence and he may serve a substantial part of the sentence unless released now and that due to the heavy work load in this High Court station, the appeal herein is bound to take long before it is determined. 18. In response to the foregoing, the Respondent submits that the Applicant has not placed before this honourable court that would demonstrate an unusual or exceptional circumstances that would persuade this court to admit the Applicant to bail pending appeal. That that the Applicant mentions that he is a family man and that he was on bail during trial is not an unusual circumstance to be considered by this court. The Respondent cited the case of Nanga v Republic (Criminal Application E008 of 2023)[2024] KECA 1490 (KLR) where the court held as follows: “ 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 jo current medical report was attached and neither has it been demonstrated that the prison 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 pretextual. 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 where an applicant demonstrates that he is likely to serve the whole of here sentence or a substantial circumstance warranting the grant of bail pending appeal. In the present case, the applicant was sentenced to 15 years imprisonment, We do not think the risk he articulates is credible, objectively aware of our docket, he is unlikely to serve a substantial or the whole of his sentence before his appeal is heard and determined. this court had ordinarily either granted bail pending appeal or expedited appeals where applicants before it were serving shorter sentences, typically under five years. this applicant cannot benefit from that argument” 19. 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 Honourable Court to uphold its submissions on the same and dismiss the Applicant's application dated 23/9/2024. 20. Further, the Respondent submitted that it has in its possession the lower court record and thus submitted that this appeal can be expedited. 21. I agree with the Respondent that the arguments by the Applicant do not constitute an exceptional or unusual circumstance to warrant the grant of bail pending appeal. 22. I have not been persuaded by the Applicant that his appeal has high chances of success as stated. 23. The Appellant was sentenced to life imprisonment on 6/9/2023. I can see and confirm the typed proceedings of the trial court as well as the physical original file are in this court file. It is my view https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14396/eng@2025-06-25 4

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therefore that the appropriate order would be to have the appeal expedited which can be done before this court proceeds to this year’s August recess. I can also confidently confirm that this court has been hearing and determining appeals expeditiously despite its heavy work load. 24. In the premises therefore, I make the following orders:a. The application dated 23/9/2024 is lacking in merit and the same is dismissed. b. The Appeal having been admitted on 4/12/2023, the Applicant is granted leave to amend, file and serve the Petition of Appeal filed on 12/9/2023 together with his submissions on the appeal within 14 days of this ruling. c. Upon service the prosecution will have a similar time line of 14 days to file and serve response submissions. d. A mention date to be fixed to confirm compliance and to take a judgement date. Orders accordingly. 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. Mutiso....................................... for Appellant/Applicant Ms. Agatha..................................... for Respondent Milly....................................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14396/eng@2025-06-25 5

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