Wathome v Republic (Criminal Appeal E060 of 2025) [2025] KEHC 19510 (KLR) (19 December 2025) (Ruling) Neutral citation: [2025] KEHC 19510 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CRIMINAL APPEAL E060 OF 2025 LW GITARI, J DECEMBER 19, 2025 BETWEEN MUTHOKA WATHOME ........................................................................ APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant filed this application under Section 357(1) of the Criminal Procedure Code (Cap 75 Laws of Kenya) with a substantive prayer for his release of bail pending appeal. The application is based on the ground that the appeal has overwhelming chances of success. 2. That he has been ailing while in prison and requires specialized treatment that the prison authorities may not offer. That there exists exceptional circumstances requiring that the appellant be admitted to bail pending the hearing and determination of the appeal. 3. The application is supported by the supporting affidavit of the applicant sworn on 9/12/2025. He deposes that he is a priest of the Africa Inland Church of Kenya and that he was framed by adversaries in the church leadership who plotted, coached and advised the minor complainant and a young man in the church to set him up so that they could takeover the church leadership. That the offence was framed on him. The applicant submits that while in prison he has developed allergy and is currently experiencing acute chest pains which the medical facilities at the prison have been unable to contain. 4. He annexed MW2. He prays that he be released on bail so that he can get specialized treatment. That he undertakes to comply with the conditions of bail. That he has filed a petition of appeal against the decision of the learned magistrate. 5. The state thro’ Mr. Ochieng ODPP did not oppose the application for the reason that he had a chance to go thro’ proceedings of the learned magistrate and finds the petition and the grounds which this court needs to consider. This was coupled with the medical reports and that he is a senior citizen. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19510/eng@2025-12-19 1
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6. I have considered the application. The appellant was convicted of the offence of defilement contrary to Section 8(3) of the Sexual Offences Act and sentenced to serve twenty (20) years imprisonment. 7. In determining this application, the most important issue for consideration is whether the appeal has overwhelming chances of success that there is no justification for depriving the applicant of his liberty. Secondly, the court has to determine whether there exists exceptional or unusual circumstances. This is because in an application for bail pending appeal, the applicant does not have the benefit of the presumption of innocence as he has been convicted of the offence that he was charged with. The leading authority in the application for bail pending appeal in the case of Somo v Republic (1972) EA 476 where the court held that: “ The most important ground is that the appeal has an overwhelming chances of being successful, in that case there is no justification for depriving the applicant of his freedom.” 8. The court further stated that: “ If it appears prima facie from the totality of the circumstances that the appeal is likely to succeed on account of some substantial point of law to be urged and the sentence or substantial part of it will have been served by the time the appeal is heard conductions for granting bail exist.” 9. In Dominic Karanja v Republic (1986) the court stated where existence of a set of circumstances does not from a set of circumstances which discharge substantial merits in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued. 10. The granting of bail pending appeal is an exercise of discretion. 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: 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.” 11. The applicant has demonstrated that he has weight grounds of appeal in his petition of appeal which are mainly that he was framed. The respondent has not opposed the application as he has stated that a cursory looks at the proceedings and the grounds of appeal need to be reconsidered by this court. 12. I have perused the proceeding and I find that there are weighty matters of evidence and the law which needs to be re-evaluated by this court. There exists overwhelming chances of the appeal being successful on a cursory look at the entire evidence of the prosecution which was used to support the charge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19510/eng@2025-12-19 2
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13. Secondly the applicant has demonstrated that there exists exceptional circumstances as he is ailing, needs specialized treatment which he is not able to access while in prison. Given these factors, there is no justification for depriving the applicant off his freedom. Order 14. I allow the application. I order that the applicant shall be granted bail pending appeal. The applicant to be released on bail of Kshs. 200,000/= plus one like surety. The surety be approved by DR. Mention on 20/1/2026. DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19510/eng@2025-12-19 3
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