1. The appellant herein was charged, convicted and sentenced to serve 15 years imprisonment for the offence of Grievous Harm contrary to section 234 of the penal code. The particulars of the offence are that on 11th day of May 2024 at Mandera East Police Station, within Mandera East Sub-County in Mandera County, unlawfully did Grievous harm to Dahaba Noor Hillow. He also faced an alternative court of assault contrary to section 251 of the penal code.
2. Dissatisfied with the Dissatisfied with the decision of the Magistrate court, the appellant preferred the present appeal filed on 3rd February 2026 setting out 15 grounds of appeal.
3. Subsequent to filing of the petition of appeal, the appellant through the firm of NICHOLAS MOMBO Advocate filed a Notice of Motion application under section 357 (1) of the criminal procedure Code seeking the following orders;
1) THAT the applicant/appellant be released on bail pending the hearing of this appeal.
2) THAT In the alternative, the court be pleased to suspend the execution of the sentence imposed on the appellant pending the hearing and determination of this appeal.
4. The application is based on the grounds on the face of the application and further reinforced by the supporting affidavit of Nicholas Amuti Mombo sworn on 27th February 2026.
5. It is averred that the appeal lodged by the applicant has an overwhelming chance of success in particular taking into consideration the fact that the trial court proceeded to sentence beyond his powers as a resident magistrate.
6. That there exist in these exceptional circumstances being that the case had two investigating officers who each gave different contradicting recommendation on whether the appellant ought to have been charged in view of the letter from the ODPP indicating that they would not prefer any charges in respect of the parties involved in this matter.
7. It is also contended that the applicant has never violated the bail term throughout his trial and being a public servant, he will abide by the terms of the bail/bond if allowed by the court.
8. The application is opposed by the state through the affidavit of STEPHEN SYANO KASYOKA sworn on 9th march 2026.
Determination
9. The issue for determination is whether the Appellant should be released on bond and/or bail pending the hearing and determination of his Appeal.
10. The appellant was convicted and sentenced by the magistrate court and therefore the presumption of innocence is no longer available to him and the principles to be considered by the court on application for grant of bail pending appeal is not the same as those for bail pending trial as set out in Article 49 of the constitution.
11. A different test applies where the matter before the Court is an application for release on bail pending the hearing of the appeal. 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”.
12. In Jivraj vs Republic (1986) KECA 36 (KLR) the Court of Appeal held:-
“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 from the totality of the circumstances that the appeal is likely to be successful on account of a substantial points of law to be urged, and that the sentence as a substantial part of it, will have been served by the time the appeal is heard, conditions of granting bail will exist.”
13. I agree with the position in Charles Owanga Aluoch vs. Director of Public Prosecutions [2015] eKLR where it was held that:
“The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial.
After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah vs. R [1966] KLR 605, the principal considerations for granting bail pending appeal were stated as follows:
1. Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.
2. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of a 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, then, a condition of granting bail will exist.
14. Counsel for the applicant contend that there exist in the instant application exceptional circumstances that warrant consideration by this court in favour of the applicant, for instance the argument that the trial court being constituted or held by a magistrate of a first class lacks power or jurisdiction to pass the sentence of 15 years imposed by the learned Magistrate. Secondly, the trial court is faulted for not taking into consideration the advice from the office of the Director of Public prosecution communicating that the matter ought to have been dealt with differently and not through the criminal justice system and for shifting the burden of proof to the accused person contrary to section 107 of the evidence Act. Reference was also made of contradiction arising from the two investigating officers who handled the matter.
15. From the petition of appeal filed, it is abundantly clear that the appellant is inviting this court to re-look and re-assess the evidence presented by the prosecution and independently make a finding based on the totality of the evidence. The appellant submitted that the court shifted the burden of proof to the appellant and failed to consider material information supplied with regard to advice by the office of the ODPP over the matter. This ground impugns the trial court assessment of the evidence tendered in court and yet the matter was prosecuted by the same office that had authored the advice.
16. The appellant challenges the decision of the trial court mainly on the findings of facts and application of the law to those facts. This in my view is a province of the appellant court under the case of OKENO VS REPUBLIC (1972) EA 32. The likelihood of success of an appeal must be based on an identified substantial point of law which directly and substantially affect the right of the appellant. A difference of opinion on the facts and evidence and the application of law to those facts cannot be said to be a substantial point of law.
17. In the circumstances therefore, I do find that the applicant has not convinced this court that there exist exceptional circumstances to warrant this courts exercise of its discretion in favour of releasing the applicant/appellant on bail pending appeal.
18. As the record of appeal has already been prepared and served upon the state, I direct that the main appeal be expedited for hearing and determination.
2. Dissatisfied with the Dissatisfied with the decision of the Magistrate court, the appellant preferred the present appeal filed on 3rd February 2026 setting out 15 grounds of appeal.
3. Subsequent to filing of the petition of appeal, the appellant through the firm of NICHOLAS MOMBO Advocate filed a Notice of Motion application under section 357 (1) of the criminal procedure Code seeking the following orders;
1) THAT the applicant/appellant be released on bail pending the hearing of this appeal.
2) THAT In the alternative, the court be pleased to suspend the execution of the sentence imposed on the appellant pending the hearing and determination of this appeal.
4. The application is based on the grounds on the face of the application and further reinforced by the supporting affidavit of Nicholas Amuti Mombo sworn on 27th February 2026.
5. It is averred that the appeal lodged by the applicant has an overwhelming chance of success in particular taking into consideration the fact that the trial court proceeded to sentence beyond his powers as a resident magistrate.
6. That there exist in these exceptional circumstances being that the case had two investigating officers who each gave different contradicting recommendation on whether the appellant ought to have been charged in view of the letter from the ODPP indicating that they would not prefer any charges in respect of the parties involved in this matter.
7. It is also contended that the applicant has never violated the bail term throughout his trial and being a public servant, he will abide by the terms of the bail/bond if allowed by the court.
8. The application is opposed by the state through the affidavit of STEPHEN SYANO KASYOKA sworn on 9th march 2026.
Determination
9. The issue for determination is whether the Appellant should be released on bond and/or bail pending the hearing and determination of his Appeal.
10. The appellant was convicted and sentenced by the magistrate court and therefore the presumption of innocence is no longer available to him and the principles to be considered by the court on application for grant of bail pending appeal is not the same as those for bail pending trial as set out in Article 49 of the constitution.
11. A different test applies where the matter before the Court is an application for release on bail pending the hearing of the appeal. 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”.
12. In Jivraj vs Republic (1986) KECA 36 (KLR) the Court of Appeal held:-
“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 from the totality of the circumstances that the appeal is likely to be successful on account of a substantial points of law to be urged, and that the sentence as a substantial part of it, will have been served by the time the appeal is heard, conditions of granting bail will exist.”
13. I agree with the position in Charles Owanga Aluoch vs. Director of Public Prosecutions [2015] eKLR where it was held that:
“The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial.
After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah vs. R [1966] KLR 605, the principal considerations for granting bail pending appeal were stated as follows:
1. Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.
2. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of a 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, then, a condition of granting bail will exist.
14. Counsel for the applicant contend that there exist in the instant application exceptional circumstances that warrant consideration by this court in favour of the applicant, for instance the argument that the trial court being constituted or held by a magistrate of a first class lacks power or jurisdiction to pass the sentence of 15 years imposed by the learned Magistrate. Secondly, the trial court is faulted for not taking into consideration the advice from the office of the Director of Public prosecution communicating that the matter ought to have been dealt with differently and not through the criminal justice system and for shifting the burden of proof to the accused person contrary to section 107 of the evidence Act. Reference was also made of contradiction arising from the two investigating officers who handled the matter.
15. From the petition of appeal filed, it is abundantly clear that the appellant is inviting this court to re-look and re-assess the evidence presented by the prosecution and independently make a finding based on the totality of the evidence. The appellant submitted that the court shifted the burden of proof to the appellant and failed to consider material information supplied with regard to advice by the office of the ODPP over the matter. This ground impugns the trial court assessment of the evidence tendered in court and yet the matter was prosecuted by the same office that had authored the advice.
16. The appellant challenges the decision of the trial court mainly on the findings of facts and application of the law to those facts. This in my view is a province of the appellant court under the case of OKENO VS REPUBLIC (1972) EA 32. The likelihood of success of an appeal must be based on an identified substantial point of law which directly and substantially affect the right of the appellant. A difference of opinion on the facts and evidence and the application of law to those facts cannot be said to be a substantial point of law.
17. In the circumstances therefore, I do find that the applicant has not convinced this court that there exist exceptional circumstances to warrant this courts exercise of its discretion in favour of releasing the applicant/appellant on bail pending appeal.
18. As the record of appeal has already been prepared and served upon the state, I direct that the main appeal be expedited for hearing and determination.