Stephen Njoroge Mbote v Republic

5. The applicant states that he is a registered teacher with Teachers Service Commission (TSC No. 592763), registered on 7th July 2011. He further states that he is employed at wise Shepherd Academy where he is recognized for outstanding performance in Early childhood Development Education (ECDE) curriculum delivery in 2019. The applicant argues that his continued incarceration will cause him severe hardship as he stands to lose his job and if he remains out of office without permission for a period of one month it will prejudice his professional standing and his family will suffer undue hardship. 6. The applicant states that the Senior Chief of Nyamang’ara Location has provided a letter dated 18th September 2025 confirming his exemplary character, honesty, discipline, Christian values and complete absence of any prior criminal record which independently verifies his good standing and suitability for bail pending appeal. 7. The respondent filed a Replying Affidavit on 29th September 2025 to the effect that the intended appeal has no chances of success due to the overwhelming evidence against the appellant. Furthermore, the respondent argues that the applicant has to discharge the burden of proof that the appeal has high chances of success as unlike bail pending trial, bail pending appeal is not a constitutional right. There is a presumption that the applicant was lawfully convicted unless the contrary is proved. 8. Furthermore, the respondent states that the applicant has not discharged the burden that he shall serve a substantial part of the sentence in the event the appeal succeeds nor has the applicant demonstrated any exceptional circumstances to warrant the court’s discretion to grant bail pending appeal. 9. The respondent argues that currently the law and practice favour quick determination of matters without unreasonable delay and thus the applicant is unlikely to serve a substantial part of the sentence before the appeal is heard and determined. 10. The respondent states that the assertions by the applicant that he will attend court religiously, he has a fixed abode, he has a family and family responsibilities and he is not a flight risk are not sufficient grounds for releasing a convicted person on bail pending appeal. Further, the applicant’s employment and his exemplary performance are not factors to be considered in bond pending appeal, nor are good behaviour and absence of prior criminal record. Thus, the respondent states that the applicant has failed to satisfy the extreme high standard for bail pending appeal. 11. Directions were issued that parties put in written submissions and the record shows that the respondent complied by filing her submissions. The applicant on the other hand had not filed his submissions by the time of writing this ruling. The Respondent’s Submissions 12. The respondent relies on Section 357(1) of the Criminal Procedure Code and the case of Jivraj Shah vs Republic [1986] eKLR and submits that the applicant has not met the required threshold for an application for bail pending appeal. Further, the respondent relies on the case of Somo vs Republic [1972] EA 476 and submits that the appeal does not have overwhelming chances of success as the evidence shows that the applicant was properly convicted. The respondent further submits that the applicant has failed to demonstrate that he shall serve a substantial part of the sentence if the appeal is likely to succeed. 13. The respondent relies on the case of R vs Kanji [1946] 22 KLR and submits that the applicant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3597/eng@2026-03-13 2

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14. Relying on the case of Chimambhai vs Republic [1971] EA 343, the respondent contends that currently, the law and practice favour quick dispensation of matters without an unreasonable delay. The respondent argues that the applicant failed to discharge the burden of proof that he is likely to serve a substantial part of the sentence before the appeal is heard which in turn could be successful hence leading to prejudice. The Law Whether the applicant has met the threshold for granting bail pending appeal 15. Section 357(1) of the Criminal Procedure Code provides for the granting of bail pending appeal, it states that:After 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. 16. 17. The principles for granting bond pending appeal were reiterated in the case of Jivraj Shah vs Republic [1986] KLR 605 which laid down the principles as follows:a. 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. b. 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 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. c. 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. It is trite law that in considering an application for bail pending appeal, the court has discretion in the matter which must be exercised judicially taking into consideration the following factors. Does the appeal have overwhelming chances of success? 18. The applicant argues that the appeal has a high probability of success. 19. I have carefully perused and examined the trial court proceedings and judgment. I have further examined the grounds of appeal and without pre-empting the appeal, the said grounds do not disclose the existence of an appeal with an overwhelming chance of success. This does not mean that the appeal is not arguable. The appellant will still have his day in court to argue his appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3597/eng@2026-03-13 3

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Is there a possibility of delay in hearing and determining the Appeal? 20. The applicant was sentenced on 2nd September 2025 to serve fifteen (15) years imprisonment. Thus it is highly unlikely that he shall have served a substantial part of the sentence before the appeal is heard. The court diary is accommodative of appeals whereas hearing dates are available. As such, I am of the view that the applicant will not serve a substantial part of his sentence before the appeal is heard and determined. Demonstration of exceptional or unusual circumstances 21. In Dominic Karanja vs Republic [1986] KLR 612 the Court of Appeal held:a. The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances; b. The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute exceptional circumstances where there existed medical facilities for prisoners; c. A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal; 22. Similarly in Peter Hinga Ngotho vs Republic [2015]eKLR it was held that the fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an applicant to bail pending appeal. 23. In the instant case, the applicant argued that he is a family man, the sole bread winner, a teacher with an exemplary record and he is not a flight risk but will attend court religiously. 24. Relying on the above cited cases, it is my considered view that the applicant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. The fact that the applicant is the sole breadwinner and has a family that depends on him or that he is a teacher do not constitute any unusual or exceptional circumstances. 25. I therefore find that the application dated 19th September 2025 lacks merit and is hereby dismissed. 26. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 13TH DAY OF MARCH 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3597/eng@2026-03-13 4

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