The appellant was convicted of charges of abuse of office and money laundering in the Chief Magistrate’s court on 14 th March 2025 and on 24 th March 2025, he was sentenced as follows;
For abuse of office - fine of Kshs 900,000.00 in default to serve seven years in jail and mandatory fine of Kshs 1,022,000.00 or seven years in jail.
For the charge of money laundering, a fine of Kshs 3,000,000.00 or in default seven years in jail.
The appellant was dissatisfied with both the conviction and sentence and preferred this appeal vide petition of appeal dated 4 th April 2025. By application dated 7 th April 2025 which is the subject of this ruling, the applicant prays that he be admitted to bail pending hearing of the appeal or in the alternative, the sentence be deferred which basically amounts to the same thing.
The application is supported by affidavit of the appellant dated 7 th April 2025 in which he depones that his appeal has high chances of success, he faithfully obeyed the terms of the bail in the trial court, he is the bread winner for his family and he needs to be in a good state of mind in prosecuting the appeal which he cannot do while in jail. The respondent did not file any response to the application despite having been served.
I have considered the application and the submissions of the applicant dated 19 th May 2025. It is trite that a court considering an application for bail pending appeal must appreciate that the appellant has been convicted by a competent court for a known offence and the sentence meted upon him is legal. So, the sentence and the conviction being legal, it should not be taken that the appellant has a constitutional entitlement to bail or bond. At this stage, the appellant has transited from an accused person to a convict and the rights enshrined in Article 50 of the Constitutional are not available to him as a matter of right. The decision of whether or not to admit the appellant to bail becomes purely discretional. In Samuel Macharia Njagi v Republic (2013) KEHC 5506 (KLR), it was held that;
‘The appellant/applicant is prima facie a convict and his constitutional freedoms and rights are thus significantly circumscribed by his conviction. He no longer enjoys the absolute presumption of innocence available to persons facing trial at the first instance. In admitting such a person to bail the court ought to, in addition to principles governing admission to bail pending appeal, bear in mind the possible dilemma of resending such a person to prison in event that his or her appeal fails.’
The same position was held in Benard Kiamni Nthusa v Republic (2016) KEHC 4212 (KLR) where Justice P. Nyamweya as she then was held that;
‘I have considered the pleadings and submissions by the parties. I note that unlike an application for bail pending trial where the Applicant has a constitutional right to be considered innocent until proved guilty, an Applicant for bail pending appeal stands on the premise that he has already been found guilty of the offence.’
Judicial precedents have established that for the applicant to succeed in an application of this nature, he must demonstrate to the court that his appeal has high chances of success or there are exceptional circumstances surrounding the case which would justify his releases on bail and that there is likelihood that he may serve substantial part or the whole of the sentence before the appeal is heard and determined.
I have perused the petition of appeal and appreciate that it is not the duty of the court to at this stage engage in the merits of the appeal. In Peter Hinga Ngatho v Republic (2015) KEHC 1902 (KLR), Honourable Justice J.M. Mativo reiterated this position in law by stating that;
‘I am aware at this stage I cannot delve deep into the merits or otherwise of the grounds of appeal and that in determine the application before me I only need to examine an overview of the grounds that have been presented bearing in mind that to delve deeper may pre-empt the hearing of the appeal.’
Having gone through the petition of appeal and the supporting affidavit, I cannot identify the instances where the appeal may be said to be strong enough to justify granting of the application. The appellant has not made any attempt to point to the court the areas which he deems the Magistrate to have erred save for averment that the sentence was excessive and severe and that the appeal has high chances of success without elaborating the areas of its strength. I have looked at the penalties provided by the law for the offences and I find that the sentences meted on the appellant were within the confines of Sections 16 of Proceeds of Crime and Anti-Money Laundering Act and 48 of the Anti-Corruption and Economic Crimes Act.
The applicant has averred that he is the only bread winner for his family and his stay in jail may affect and jeopadise the family in terms of provision. He has however not exhibited any evidence which may support that position. In any event, being his family’s breadwinner does not in my view translate to exemptional circumstances.
The other point raised by the applicant is that there is a risk of him serving the sentence before the appeal is heard and determined. I have looked at the lower court file which contains typed proceedings. All that remains for the appeal to be ready for hearing is for the Deputy Registrar to prepare the record of appeal. I note that the court did not specify whether the sentences shall run concurrently or consecutively but it must be assumed that they were to run concurrently.
If the appellant is prudent and proactive, this appeal can be concluded within one year. There is no likelihood that he will have served a substantial part of the sentence by the time the appeal is heard and determined.
In the final analysis, I find that the application lacks merits and is hereby disallowed. The Deputy Registrar is directed to ensure that the record of appeal is prepared and ready for collection by the parties within forty five days from today. Thereafter the file shall be placed before this court for directions on the appeal.
Dated signed and delivered at Nairobi this 31 st day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Mr. Ashiruma for the 1 st applicant and in absence of the respondent.
For abuse of office - fine of Kshs 900,000.00 in default to serve seven years in jail and mandatory fine of Kshs 1,022,000.00 or seven years in jail.
For the charge of money laundering, a fine of Kshs 3,000,000.00 or in default seven years in jail.
The appellant was dissatisfied with both the conviction and sentence and preferred this appeal vide petition of appeal dated 4 th April 2025. By application dated 7 th April 2025 which is the subject of this ruling, the applicant prays that he be admitted to bail pending hearing of the appeal or in the alternative, the sentence be deferred which basically amounts to the same thing.
The application is supported by affidavit of the appellant dated 7 th April 2025 in which he depones that his appeal has high chances of success, he faithfully obeyed the terms of the bail in the trial court, he is the bread winner for his family and he needs to be in a good state of mind in prosecuting the appeal which he cannot do while in jail. The respondent did not file any response to the application despite having been served.
I have considered the application and the submissions of the applicant dated 19 th May 2025. It is trite that a court considering an application for bail pending appeal must appreciate that the appellant has been convicted by a competent court for a known offence and the sentence meted upon him is legal. So, the sentence and the conviction being legal, it should not be taken that the appellant has a constitutional entitlement to bail or bond. At this stage, the appellant has transited from an accused person to a convict and the rights enshrined in Article 50 of the Constitutional are not available to him as a matter of right. The decision of whether or not to admit the appellant to bail becomes purely discretional. In Samuel Macharia Njagi v Republic (2013) KEHC 5506 (KLR), it was held that;
‘The appellant/applicant is prima facie a convict and his constitutional freedoms and rights are thus significantly circumscribed by his conviction. He no longer enjoys the absolute presumption of innocence available to persons facing trial at the first instance. In admitting such a person to bail the court ought to, in addition to principles governing admission to bail pending appeal, bear in mind the possible dilemma of resending such a person to prison in event that his or her appeal fails.’
The same position was held in Benard Kiamni Nthusa v Republic (2016) KEHC 4212 (KLR) where Justice P. Nyamweya as she then was held that;
‘I have considered the pleadings and submissions by the parties. I note that unlike an application for bail pending trial where the Applicant has a constitutional right to be considered innocent until proved guilty, an Applicant for bail pending appeal stands on the premise that he has already been found guilty of the offence.’
Judicial precedents have established that for the applicant to succeed in an application of this nature, he must demonstrate to the court that his appeal has high chances of success or there are exceptional circumstances surrounding the case which would justify his releases on bail and that there is likelihood that he may serve substantial part or the whole of the sentence before the appeal is heard and determined.
I have perused the petition of appeal and appreciate that it is not the duty of the court to at this stage engage in the merits of the appeal. In Peter Hinga Ngatho v Republic (2015) KEHC 1902 (KLR), Honourable Justice J.M. Mativo reiterated this position in law by stating that;
‘I am aware at this stage I cannot delve deep into the merits or otherwise of the grounds of appeal and that in determine the application before me I only need to examine an overview of the grounds that have been presented bearing in mind that to delve deeper may pre-empt the hearing of the appeal.’
Having gone through the petition of appeal and the supporting affidavit, I cannot identify the instances where the appeal may be said to be strong enough to justify granting of the application. The appellant has not made any attempt to point to the court the areas which he deems the Magistrate to have erred save for averment that the sentence was excessive and severe and that the appeal has high chances of success without elaborating the areas of its strength. I have looked at the penalties provided by the law for the offences and I find that the sentences meted on the appellant were within the confines of Sections 16 of Proceeds of Crime and Anti-Money Laundering Act and 48 of the Anti-Corruption and Economic Crimes Act.
The applicant has averred that he is the only bread winner for his family and his stay in jail may affect and jeopadise the family in terms of provision. He has however not exhibited any evidence which may support that position. In any event, being his family’s breadwinner does not in my view translate to exemptional circumstances.
The other point raised by the applicant is that there is a risk of him serving the sentence before the appeal is heard and determined. I have looked at the lower court file which contains typed proceedings. All that remains for the appeal to be ready for hearing is for the Deputy Registrar to prepare the record of appeal. I note that the court did not specify whether the sentences shall run concurrently or consecutively but it must be assumed that they were to run concurrently.
If the appellant is prudent and proactive, this appeal can be concluded within one year. There is no likelihood that he will have served a substantial part of the sentence by the time the appeal is heard and determined.
In the final analysis, I find that the application lacks merits and is hereby disallowed. The Deputy Registrar is directed to ensure that the record of appeal is prepared and ready for collection by the parties within forty five days from today. Thereafter the file shall be placed before this court for directions on the appeal.
Dated signed and delivered at Nairobi this 31 st day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Mr. Ashiruma for the 1 st applicant and in absence of the respondent.