Gabriel Kimani Kungu v Republic

3. The applicant states that he was not able to procure any legal representation during the hearing of the prosecution case. The applicant further states that the trial court erred in law and violated principles of equity in convicting and sentencing him. 4. The applicant avers that the appeal has high chances of success and that he stands to suffer if bail is not granted as he will have served a substantial part of his three-year sentence before the hearing and determination of this appeal. 5. The applicant states that he has always attended the trial court while out on cash bail without fail and that he is willing to provide a suitable surety as the court may direct. 6. The respondent filed a Replying Affidavit on 25th November 2024 and states that the applicant was charged with six (6) counts of forgery in Gatundu MCCR No. E428 of 2023. The applicant was found guilty and sentenced to serve a total of three years imprisonment in the three counts he was convicted of, respectively. 7. The respondent avers that the applicant had not served them with his petition of appeal. 8. The respondent avers 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. According to the respondent, bail pending appeal is not a constitutional right. As things are, there is a presumption that the applicant was lawfully convicted unless the contrary is proved. 9. Furthermore, the respondent states that the applicant has not discharged the burden that he is likely to 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. 10. 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. 11. The respondent states that the applicant has not availed the judgment or proceedings and therefore the court will not be in a position to peruse the record to establish whether the appeal is arguable with high chances of success. 12. The respondent states that the applicant is legally convicted and the sentence can only be varied if his appeal is heard, determined and if he succeeds. The respondent further argues that the earlier bond terms set by the trial court cannot be applied in this Honourable court. 13. Parties put in written submissions. The Applicant’s Submissions 14. The applicant relies on Section 357 of the Criminal Procedure Code and the case of Jivraj Shah vs Republic (1980) KLR 605 and submits that as per his grounds of appeal set out in the petition of appeal, the trial court erred on points of law and principles of equity revealing unusual circumstances warranting the grant of bail pending appeal. The applicant further submits that he will have served a substantial part of his three year sentence by the time the appeal is heard and determined. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4778/eng@2026-02-20 2

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The Respondent’s Submissions. 15. 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. 16. 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. 17. 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. 18. The respondent submits that the judgment and proceedings nor has the petition of appeal been availed and thus the court cannot be in a position to peruse the record and establish whether an arguable appeal has been availed. The respondent further submits that the earlier bond terms set by the trial court cannot be applied in the instant court thus cash bail granted at the trial court cannot apply to the instant court in the current appeal. The Law Whether the Applicant has Met the Threshold for Granting Bail Pending Appeal. 19. 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. 20. The principles for granting bond pending appeal were reiterated in the case of Jivraj Shah v 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4778/eng@2026-02-20 3

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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. 21. 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? 22. The applicant argues that the appeal has a high probability of success as the trial court erred on matters of law as set out in the petition of appeal. On perusal of the petition of appeal, the applicant has generally challenged the conviction and sentence of the trial court in regard to the three counts he was convicted with. 23. The lower court record was availed and the court has had the chance to peruse the proceedings and judgment of the court. I have also examined the grounds of appeal and without pre-empting the appeal I am of the view that 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. Is there a Possibility of Delay in hearing and Determining the Appeal? 24. The applicant was sentenced on 22/10/2024 to eighteen (18) months imprisonment in Count IV; one (1) year imprisonment on Count V and six (6) months imprisonment on Count VI. The sentences were to run concurrently. 25. 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 within the first half of this year. 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 provided he fast-tracks the preparation of the record of appeal and takes the other necessary steps. The proceedings and judgment of the trial court have already been typed. Demonstration of Exceptional or Unusual Circumstances 26. 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; 27. Similarly in Peter Hinga Ngotho v 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. 28. In the instant case, the applicant has argued that his grounds of appeal touch on issues of law and therefore fall under unusual and exceptional circumstances. However, the applicant did not substitute https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4778/eng@2026-02-20 4

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this argument so as to convince the court that the grounds amount to unusual and exceptional circumstances. 29. Relying on the forgoing 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. 30. On the issue of stay or suspension of the sentence in the trial court, I am of the view that this can only be done, in the event that the applicant’s application is successful and where the facts of the case so justifies. 31. I therefore find that the application dated 12th November 2024 lacks merit and is hereby dismissed. 32. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 20TH DAY OF FEBRUARY, 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4778/eng@2026-02-20 5

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