Mwangi v Republic (Criminal Appeal E035 of 2025) [2026] KEHC 4465 (KLR) (20 February 2026) (Ruling) Neutral citation: [2026] KEHC 4465 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KERUGOYA CRIMINAL APPEAL E035 OF 2025 EM MURIITHI, J FEBRUARY 20, 2026 BETWEEN MILLICENT NYAWIRA MWANGI ...................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Appellant was convicted of being in possession of Narcotic Drugs contrary to Section 3 (1) (2) of the Narcotic Drugs and Psychotropic Substance Control Act, and sentenced to 4 years imprisonment. She has filed a notice of motion under certificate of urgency dated 3/9/2025 in this court seeking that, “1) The Applicant/Appellant be granted bail pending the hearing of her Appeal Criminal Appeal No. E035 of 2025.” 2. She contends that in addition to being a single mother and the sole bread winner to her young children and those belonging to her sister, she suffers from controlled hypertension and diabetes which are life threatening if not well and clearly monitored. Her appeal, which raises weighty issues of law and facts, has overwhelming chances of success, and once released on bail, she will cooperate and appear in court or elsewhere. 3. The DPP filed submissions dated 14th October 2025 on the main appeal but there was no response to the application for bail pending appeal. Submissions 4. The Appellant urges that the appeal has high chances of success, and cites Shantilal M. Ruwala v. R [1957] EA 570 and Peters v Sunday Post [1958] EA 424 on the duty of the first appellate court. She urges that she has already served a substantial part of the sentence, and faults the trial court for failing to consider the option of a fine as expressly provided under Section 3 (2) of the Narcotic Drugs and Psychotropic Substances Control Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4465/eng@2026-02-20 1
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5. The Respondent urges that section 348 of the Criminal procedure Code bars an appeal from a conviction on a plea of guilty other than on severity and legality of sentence, and that sentencing is the preserve of the trial court and the absence of a Pre-sentence Report did not fatally prejudice the Appellant. Determination 6. The principles to be considered in an application for bail pending appeal pursuant to the provisions of Sections 356 and 357 of the Criminal Procedure Code were set out in Jivraj Shah v R (1986) KLR 605 which considered earlier decisions of the Court and expounded on the factor of overwhelming chances of success and held as follows: “ 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 (1972) EA 476 which was referred to by this court with approval in Criminal Application 5 No. NAI 14 of 1986, Daniel Dominic Karanja 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. It is almost selfdefeating to attempt to define phrases or to establish formulae.” 7. The Applicant pleaded guilty and was sentenced on 27/5/2025. There is no likelihood that she will have served a substantial portion of the sentence before the appeal is heard and determined. 8. While the Applicant has alluded to the fact that she is ill and in need of round the clock medical attention, she has not cited how her incarceration has impeded on her right to access the medical facilities available to inmates. After all, it appears that the Applicant was able to instruct an advocate to lodge the appeal on her behalf as the instant application and the petition of appeal were drawn and filed by Gachungi & Associates. 9. There is no report from the prison authorities indicating that their health facilities are unable to deal with any medical condition the appellant may be suffering. 10. The Court finds that the Applicant has not shown any exceptional circumstances to warrant her release on bail pending appeal. Orders 11. Accordingly for the reasons set out above, the Applicant’s application dated 3/9/2025 is without merit and it is dismissed. 12. However, the Applicant’s appeal will be heard on priority basis, in line with the holding in Thambura Leornard Mucui v Republic (2021) eKLR. Order accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4465/eng@2026-02-20 2
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DATED AND DELIVERED THIS 20TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for the DPP. Ms. Gachungi for Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4465/eng@2026-02-20 3
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