1. The appellant was charged in the Lower Court with the offence of Stealing Contrary to Section 268 of the Penal Code with particulars of the charge being that on diverse dates between 24th and 29th day of July 2023 at Iten Township, Keiyo North Sub-County, he stole cash Ks. 331,090/- the property of Judith Jepkoech Kosgei.
2. The accused was found guilty by the Trial Court, convicted and sentenced to serve a term of three years’ imprisonment. By a Notice of Motion dated 3/12/2024, the Appellant herein now seeks for orders that:
1) Spent.
2) This Honourable Court be pleased to admit the Appellant to bail/bond pending Appeal.
3) In the alternative this Honourable Court be pleased to order stay and/or suspension of execution of sentence in Iten Magistrate’s Criminal Case No.963 of 2023, pending the hearing and determination of the instant appeal.
4) The cost be in the cause.
3. The Application is premised on the following grounds:
a) That the trial Court has convicted and sentenced the Appellant herein for 3 years’ imprisonment.
b) That the Appellant herein has since filed an appeal against the said conviction and sentence of the trial Court.
c) That the Appellant’s appeal has high chances of success.
d) That the Appellant may suffer prejudice if he continues to serve his sentence in prison and in the event his appeal is allowed.
e) That the appeal might take long to be processed due to delay in typing proceedings.
f) That it is the interest of justice that the Appellant be admitted to bail/bond pending appeal.
g) That no party will suffer prejudice.
h) That this application has been brought promptly and it is only fair that the same be allowed as prayed.
4. The Application is also supported by an Affidavit sworn by the Applicant on 3/12/2024. In the Affidavit, the Applicant basically reiterated the grounds in support of his Application herein already captured. The Application is unopposed by the Respondent.
Determination
5. The only issue before this court is whether the Appellant should be admitted to bond pending Appeal.
6. The right to bail pending Appeal is premised on Section 357 (1) of the Criminal Procedure Code which 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.”
7. However, bail pending Appeal is at the discretion of the court and hence the onus is on an Applicant to convince the court as to why the discretion should be exercised in their favour (See. Charles Owanga Alouch v DPP [2015] e KLR)
8. The consideration for the grant of bail pending appeal is founded in the principles set out in Ademba v Republic 1983 eKLR where the Court of Appeal held that;
“……bail pending appeal may only be granted if there are exceptional or unusual circumstances. the likelihood of success in the Appeal is a factor taken into consideration in granting bail pending appeal…”
9. In the case of Chimambhai v Republic 1971 EA 343, J. Harris made another observation in such an application when he stated:
“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, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”
10. The principles for granting bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles 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. In the instant case, I note that at the trial in the Lower Court, the Appellant was out on bond and he faithfully attended court such that it is at the point of sentencing that the Trial Magistrate directed that the cash bail that he had deposited in court be released to the depositor. For this reason, by his previous conduct, the Appellant has demonstrated that he does attend court as and when required if released on bond. The court further notes that the Prosecution is also not opposed to his application. In this regard, I find merit in the Applicant’s Application for Bond. The appellant is therefore to be released a Personal Bond of Ks. 100,000/- plus 1 surety of a similar amount or in the alternative Cash Bail of Ks. 70,000/- pending the hearing and determination of the appeal. Right of Appeal 14 days.
Read dated and Signed at ELDORET on 9th July 2025
2. The accused was found guilty by the Trial Court, convicted and sentenced to serve a term of three years’ imprisonment. By a Notice of Motion dated 3/12/2024, the Appellant herein now seeks for orders that:
1) Spent.
2) This Honourable Court be pleased to admit the Appellant to bail/bond pending Appeal.
3) In the alternative this Honourable Court be pleased to order stay and/or suspension of execution of sentence in Iten Magistrate’s Criminal Case No.963 of 2023, pending the hearing and determination of the instant appeal.
4) The cost be in the cause.
3. The Application is premised on the following grounds:
a) That the trial Court has convicted and sentenced the Appellant herein for 3 years’ imprisonment.
b) That the Appellant herein has since filed an appeal against the said conviction and sentence of the trial Court.
c) That the Appellant’s appeal has high chances of success.
d) That the Appellant may suffer prejudice if he continues to serve his sentence in prison and in the event his appeal is allowed.
e) That the appeal might take long to be processed due to delay in typing proceedings.
f) That it is the interest of justice that the Appellant be admitted to bail/bond pending appeal.
g) That no party will suffer prejudice.
h) That this application has been brought promptly and it is only fair that the same be allowed as prayed.
4. The Application is also supported by an Affidavit sworn by the Applicant on 3/12/2024. In the Affidavit, the Applicant basically reiterated the grounds in support of his Application herein already captured. The Application is unopposed by the Respondent.
Determination
5. The only issue before this court is whether the Appellant should be admitted to bond pending Appeal.
6. The right to bail pending Appeal is premised on Section 357 (1) of the Criminal Procedure Code which 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.”
7. However, bail pending Appeal is at the discretion of the court and hence the onus is on an Applicant to convince the court as to why the discretion should be exercised in their favour (See. Charles Owanga Alouch v DPP [2015] e KLR)
8. The consideration for the grant of bail pending appeal is founded in the principles set out in Ademba v Republic 1983 eKLR where the Court of Appeal held that;
“……bail pending appeal may only be granted if there are exceptional or unusual circumstances. the likelihood of success in the Appeal is a factor taken into consideration in granting bail pending appeal…”
9. In the case of Chimambhai v Republic 1971 EA 343, J. Harris made another observation in such an application when he stated:
“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, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”
10. The principles for granting bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles 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. In the instant case, I note that at the trial in the Lower Court, the Appellant was out on bond and he faithfully attended court such that it is at the point of sentencing that the Trial Magistrate directed that the cash bail that he had deposited in court be released to the depositor. For this reason, by his previous conduct, the Appellant has demonstrated that he does attend court as and when required if released on bond. The court further notes that the Prosecution is also not opposed to his application. In this regard, I find merit in the Applicant’s Application for Bond. The appellant is therefore to be released a Personal Bond of Ks. 100,000/- plus 1 surety of a similar amount or in the alternative Cash Bail of Ks. 70,000/- pending the hearing and determination of the appeal. Right of Appeal 14 days.
Read dated and Signed at ELDORET on 9th July 2025