Thadeus Atandi v Republic

2. f. That the Appellant undertakes to attend and present himself to court or the police whenever required and shall ensure that he complies with all the terms the court shall be pleased to impose. g. That there is no possibility of the Applicant interfering with witnesses. h. That there are no compelling reasons why the Applicant should not be admitted to bail pending Appeal, and the same should thus be admitted to bail. i. That it is in the interests of justice that this application be allowed. In response, the respondent filed grounds of opposition dated which were that; a. The application is defective, frivolous, and abuse of the court process. b. The application does not meet the principles and the requisite threshold for the grant of the orders sought. c. The applicant has not demonstrated the existence of exceptional or unusual circumstances to be granted bond/bail pending appeal. d. The appeal has no chances of success since the respondent proved its case beyond any reasonable doubt. e. The fact that the applicant was granted bond at the trial court and complied is not an exceptional circumstance to warrant the granting of bail pending appeal. f. The application is made in bad faith and the same is not in the interest of justice. Issues of Determination 3. Having considered the Application, the Petition of Appeal, and the response thereto, the sole issue of determination is whether the application has met the threshold for grant of bond pending Appeal. Analysis and Determination 4. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19768/eng@2025-06-26 2

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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.” 5. It is clear that this court has the power to grant bond/bail pending Appeal. The threshold for granting bond pending appeal as set out in various court decisions is as follows: a. Whether there exists exception or unusual circumstances which justify grant of bail in interests of justice. (See Jivraj Shah vs R (1986) KLR 605) b. Such exceptional circumstances exist where the appeal has overwhelming chances of success or where a set of circumstances exist which disclose substantial merit in the appeal and that the sentence or a substantial part of it will have been served by the time the appeal is heard. (See Jivraj Shah supra; Mutua vs R (1988) KLR 497; and Somo vs R (1972) E.A 476.) c. The previous good character of the applicant and the hardships facing his family, and his ill health, where there existed prison medical facilities for prisoners, are not exceptional or unusual circumstances. (See Dominic Karanja vs R (1986) KLR 612.) d. A solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal. (See Dominic Karanja, supra). 6. I have considered the Petition of appeal and the grounds raised therein and grounds of opposition the submissions. It is clear that the petition of appeal same raises an arguable issue on whether prosecution proved their case beyond any reasonable doubt. 7. On whether the Applicant demonstrated that there exist exceptional circumstances to warrant granting bond or bail pending hearing and determination of appeal, he avers that he sufiers from an acute medical condition which has been worsened by his incarceration. He contended that he was on bond throughout the trial in the lower court and that he never absconded even one day. It is argued granted bond pending appeal; the Applicant will be able to access the much needed specialized at his own expense to ensure that he is fit to prosecute his appeal. In the case of Dominic Karanja case, the Court stated as follows: “ The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] E A 476. A solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal. The applicant was certified to be fit by a doctor on September 23, 1986 and so no issue of ill health arises. We are not to be taken to mean that ill-health per se would constitute an exceptional or unusual circumstance in every case. There exist medical facilities for prisoners in the country.” 8. From the forgoing therefore I agree with the state that the application has not met the threshold for granting bond pending appeal. I find no merit in the application and the same is hereby dismissed. 9. Parties are hereby directed to take directions on the disposal of the appeal for expeditious disposal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19768/eng@2025-06-26 3

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10. It is so ordered. T.A ODERA JUDGE 26.6.25 Delivered virtually in the presence of: The applicant Mr. Koima for the State Court Assistant - Kipchirchir Mention on 14.7.25 for directions on the appeal T.A ODERA JUDGE 26.6.25 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19768/eng@2025-06-26 4

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