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JudgmentCPL JOHN KIMWELI MUSAU VS Republic4 min read

CPL JOHN KIMWELI MUSAU VS Republic

High Court at Nyahururu High Court · · Lilian Mutende


  1. The Applicant was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code.  He was taken through full trial, convicted and sentenced to serve fifteen (15) years imprisonment.
  2. Through an application dated 3rd May 2024, the Applicant seeks release on bail pending appeal.
  3. The substratum of the application is that the Applicant is dissatisfied with the judgment and sentence and has filed a Notice of Appeal with an intention of appealing against the conviction and sentence.
  4. The Application is supported by an affidavit deposed by the Applicant who depones that the appeal has a high probability of success; he was out on bail during trial and he attended court as required and will continue attending court if released on bond.
  5. That he is the sole bread winner of his family and if not granted bail the appeal shall be rendered nugatory as he will have served most of the sentence by the time the appeal is heard and determined.
  6. The application is brought pursuant to Section 356 of the Criminal Procedure Code (CPC) that provides thus;

(1) The High Court, or the subordinate court which has convicted or sentenced a person, may grant bail or may stay execution on a sentence or order pending the entering of an appeal, on such terms as to security for the payment of money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the sentence or order as may seem reasonable to the High Court or the subordinate court.

(2) If the person in whose favour bail or a stay of execution is granted under this section is ultimately liable to a sentence of imprisonment, the time during which the person has been released on bail, or during which the execution was stayed, shall be excluded in computing the term of his sentence, unless the High Court, or failing that court the subordinate court which convicted and sentenced the person, otherwise orders.

  1. Directions in the matter were given where parties were to canvass the application through written submissions.  However, this was not done and parties asked for a ruling date hence this decision.
  2. This court has discretion to determine whether or not to grant bail.  In exercising the judicial discretion espoused in Section 356 of the CPC, it must consider circumstances under which an individual can be released on bond pending appeal.
  3. The right to bail is provided in Article 49(1)(h) of the Constitution that enacts as follows;
  4. An arrested person has the right—

(h)  to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

  1. It must however be appreciated that this is a position where a person is presumed innocent whose liberty should not be compromised.  But, at an appellate stage the court deals with a convict who is serving sentence hence the principles applicable are different.  This was held in Masrani v Republic [1960] EA 321 where the court delivered itself thus;

“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.”

  1. Principles to guide the court when considering the question of bail pending appeal were stated in Jivraj Shah v Republic [1986] eKLR by the Court of Appeal which stated thus;
  2. 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.
  3. 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.
  4. 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.
  5. The burden of demonstrating existence of the factors that call for release of the Appellant on bail lie with the Applicant.  The factors may include; The likelihood of the appeal succeeding; whether the sentence will be served before the appeal is determined or any other exceptional circumstances.
  6. In this case it is averred that the appeal is likely to succeed and the appeal may be rendered nugatory as he will have served sentence before the appeal is determined.  I have considered the judgment delivered and the fact that no submissions were filed to demonstrate how the appeal has high chances of succeeding.  This condition has not been met.
  7. On the question of the Applicant having complied with bail terms set during trial; In Dominic Karanja v Republic [1986] KLR 612; the court held that;

"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. 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."

  1. Bail pending appeal is significant as it enables preservation of the rights and dignity of the Appellant as he pursues the appeal but as afore stated it is not automatic and in the instant matter the Applicant has failed to establish existence of conditions that would call for grant of the orders sought.
  2. In the upshot, the application is unmerited is dismissed.
  3. It is so ordered.


    CPL JOHN KIMWELI MUSAU VS Republic CPL JOHN KIMWELI MUSAU VS Republic