1. What is pending before this court is the applicants’ Notice of Motion dated 21st December 2024 seeking bail pending appeal. The application is expressed to be brought under Section 357 of the Criminal Procedure Code. the applicant was charged and convicted of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act in Iten Senior Principal Magistrates Criminal Court Case no. E033 of 2024. He was sentenced to serve 20 years’ imprisonment and has appealed against the decision of the trial court vide Iten High Court Criminal Appeal No. E033 of 2024. Additionally, he has also filed the present revision.
2. The application is remised on the grounds on the face of it and the averments in the affidavit in support of the application.
3. The parties canvassed the application by way of written submission. The applicant vide handwritten submissions dated 04/06/2024 which, from the title, appear to be submissions in the appeal. Notably, the appeal is scheduled for mention on 08/05/2025.
4. Appellants submissions
The appellant submitted that his appeal is arguable and has high chances of success. Further, that he was out on bond during the pendency of the trial in the trial court and never failed to attend court. He urged that if he serves the period pending appeal in custody he is likely to lose his construction contract certificate which will be prejudicial to him as his job is the only source of income for his family which depends on him for support.
5. The appellant cited section 357 of the Criminal Procedure Code on bail and Article 49(1)(h) on admission and the right to bail. He reiterated that he has an arguable case with overwhelming chances of success and delved into the merits of the appeal which, in summary, is pegged on the government analyst report on DNA which he claims excluded him as the perpetrator. He urged the court to allow the application as prayed.
Respondents’ submissions
6. Learned counsel for the state filed submissions on 24/03/2025 in opposition to the appeal. Counsel Racheal Mwangi submitted that the legal basis for bail pending appeal is derived from section 357 of the Criminal Procedure Code which provides the grounds and procedures for applying for bail pending appeal. She further submitted that the section does not automatically grant a right to bond pending appeal as the applicant must show substantial grounds as to why they should be released. She cited the case of Jivraj Shah vs Republic (1986) eKLR in this regard.
7. Counsel cited the case of Ademba vs Republic (1983) KLR in support of the submission that the applicant has not shown any exceptional or unusual circumstances that would warrant this court to grant bond pending appeal. Further, that the appellant lost his right to bond once he was convicted and the present application is subject to the discretion of the court. She cited the case of Charles Owanga Oluoch vs The DPP (2015) KLR in support of this submission. She further stated that the applicant has not demonstrated that his appeal has an overwhelming chance of success and the application does not raise any substantial or weighty matters of law to warrant the release of the applicant on bond pending appeal. She cited the case of Mburu v Republic (Criminal Appeal E039 of 2023) (2024) KEHC 2757 (KLR) (14 March 2024) where the court expressed itself on the same. She urged the court to dismiss the application for lack of merit.
Analysis and Determination
8. Section 357 (1) of the Criminal Procedure Code states that:
“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.”
9. In the case of Masrani v R [1060] EA 321, it was held that: -
“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”
10. Apart from the provisions of Section 357 of the Criminal Procedure Code above, the principles that will guide this court on whether or not to grant the Applicant’s Application for bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605. These principles were reiterated in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR and they are as follows;
“(1) 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.
(2) If it appears prima face 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.
(3) 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.”
11. Further, In the case of Chimambhai v Republic 1971 EA 343, J. Harris observed as follows:
“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence…….”
12. Lastly, he Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated that: -
“(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 an exceptional circumstance 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;
13. I have carefully considered and weighed the Application by the Applicant alongside the relevant Statutory provision as well as the relevant Case Law as herein cited. Having ruminated upon the same at length, it is my finding that the Applicant has not sufficiently satisfied the requirements for bond pending Appeal as herein set out for reasons that he has not sufficiently demonstrated to court that exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant him bail exist and/or that from the totality of the circumstances the appeal is likely to be successful on account of some substantial point of law to be argued or that the sentence or substantial part of it will have been served by the time the appeal is heard;
14. On the issue of what exceptional or unusual circumstances can be construed to be, I am guided by the decision of the Court of Appeal in Dominic Karanja v Republic (1986) KLR 612 (Supra). I also fully associate myself with the holding of Harris J in Chimambhai v Republic 1971 EA 343 (Supra) that in an application for bond pending appeal, the fact of the conviction of an Applicant strongly mitigates against the presumption of innocence. For these reasons, it is my finding that the Applicant’s Application lacks merit and the same is accordingly dismissed in its entirety.
15. Right of Appeal 14 days
Read dated and Signed at ELDORET on 9th July 2025
2. The application is remised on the grounds on the face of it and the averments in the affidavit in support of the application.
3. The parties canvassed the application by way of written submission. The applicant vide handwritten submissions dated 04/06/2024 which, from the title, appear to be submissions in the appeal. Notably, the appeal is scheduled for mention on 08/05/2025.
4. Appellants submissions
The appellant submitted that his appeal is arguable and has high chances of success. Further, that he was out on bond during the pendency of the trial in the trial court and never failed to attend court. He urged that if he serves the period pending appeal in custody he is likely to lose his construction contract certificate which will be prejudicial to him as his job is the only source of income for his family which depends on him for support.
5. The appellant cited section 357 of the Criminal Procedure Code on bail and Article 49(1)(h) on admission and the right to bail. He reiterated that he has an arguable case with overwhelming chances of success and delved into the merits of the appeal which, in summary, is pegged on the government analyst report on DNA which he claims excluded him as the perpetrator. He urged the court to allow the application as prayed.
Respondents’ submissions
6. Learned counsel for the state filed submissions on 24/03/2025 in opposition to the appeal. Counsel Racheal Mwangi submitted that the legal basis for bail pending appeal is derived from section 357 of the Criminal Procedure Code which provides the grounds and procedures for applying for bail pending appeal. She further submitted that the section does not automatically grant a right to bond pending appeal as the applicant must show substantial grounds as to why they should be released. She cited the case of Jivraj Shah vs Republic (1986) eKLR in this regard.
7. Counsel cited the case of Ademba vs Republic (1983) KLR in support of the submission that the applicant has not shown any exceptional or unusual circumstances that would warrant this court to grant bond pending appeal. Further, that the appellant lost his right to bond once he was convicted and the present application is subject to the discretion of the court. She cited the case of Charles Owanga Oluoch vs The DPP (2015) KLR in support of this submission. She further stated that the applicant has not demonstrated that his appeal has an overwhelming chance of success and the application does not raise any substantial or weighty matters of law to warrant the release of the applicant on bond pending appeal. She cited the case of Mburu v Republic (Criminal Appeal E039 of 2023) (2024) KEHC 2757 (KLR) (14 March 2024) where the court expressed itself on the same. She urged the court to dismiss the application for lack of merit.
Analysis and Determination
8. Section 357 (1) of the Criminal Procedure Code states that:
“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.”
9. In the case of Masrani v R [1060] EA 321, it was held that: -
“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”
10. Apart from the provisions of Section 357 of the Criminal Procedure Code above, the principles that will guide this court on whether or not to grant the Applicant’s Application for bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605. These principles were reiterated in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR and they are as follows;
“(1) 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.
(2) If it appears prima face 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.
(3) 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.”
11. Further, In the case of Chimambhai v Republic 1971 EA 343, J. Harris observed as follows:
“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence…….”
12. Lastly, he Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated that: -
“(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 an exceptional circumstance 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;
13. I have carefully considered and weighed the Application by the Applicant alongside the relevant Statutory provision as well as the relevant Case Law as herein cited. Having ruminated upon the same at length, it is my finding that the Applicant has not sufficiently satisfied the requirements for bond pending Appeal as herein set out for reasons that he has not sufficiently demonstrated to court that exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant him bail exist and/or that from the totality of the circumstances the appeal is likely to be successful on account of some substantial point of law to be argued or that the sentence or substantial part of it will have been served by the time the appeal is heard;
14. On the issue of what exceptional or unusual circumstances can be construed to be, I am guided by the decision of the Court of Appeal in Dominic Karanja v Republic (1986) KLR 612 (Supra). I also fully associate myself with the holding of Harris J in Chimambhai v Republic 1971 EA 343 (Supra) that in an application for bond pending appeal, the fact of the conviction of an Applicant strongly mitigates against the presumption of innocence. For these reasons, it is my finding that the Applicant’s Application lacks merit and the same is accordingly dismissed in its entirety.
15. Right of Appeal 14 days
Read dated and Signed at ELDORET on 9th July 2025