1. The appellants in this matter filed the appeal on the 7 th November 2024 as per their petition of appeal.
2. The appellants immediately thereafter moved the court by way of a notice of motion seeking to be admitted to bail pending appeal.
3. This court considered the matter and delivered a Ruling on the 16 th November 2024 declining to admit them to be bail pending appeal.
4. In the ruling rendered on the 16 th November 2024 this court stated:
“ the arguments made in respect of the respective sentences by each of the appellants touched on the severity of sentence thus even assuming their respective appeals on sentence were to succeed that could only affect the length of time to be served. This court having perused the lower court file finds that there is no possibility that this appeal will unnecessarily be delayed and therefore finds that there are no special or exceptional circumstances to grant bail pending appeal.”
5. The applicants have by way of a notice of motion moved court for the following orders:
1. THAT this Application be certified as urgent and be heard ex-parte in
the first instant due to its urgency on priority basis.
2. THAT the Applicant herein be admitted to Bail Pending the Hearing and Determination of his Appeal that has already been filed herein.
3. THAT the cost of this application be borne by the Cause.
ON THE GROUNDS THAT:
a) THAT the Appellant/Applicant being dissatisfied of the
Judgment/conviction of the court delivered on 31st October 2024 and sentence on 6th November 2024 has exercised his rights to Petition an Appeal against the said conviction and sentence.
b) THAT the Applicant/Appellant's Petition of Appeal has high chances
of success.
c) THAT the Petition of Appeal is both against the Conviction and
sentence.
d) THAT from inception of the charges way back on 18th November
2015 the Appellant/Applicant has been out on bond/cash bail and he has diligently attended court and abide by the terms of the bond/bail.
e) THAT the Appellant/Applicant is a civil servant and has a place on
board with no likelihood of absconding and /or abusing the bond/bail terms.
f) THAT the Appellant/Applicant is not a flight risk as his family resides
within the jurisdiction of the court.
g) THAT the Appellant/Applicant herein is sickly and has hypertension.
h) THAT this Application is made in good faith and in the interest of THAS justice.
6. The appearance of acute that there are grounds that necessitate the review of the Ruling declining to admit them to bail pending appeal.
7. The appellants argue that there is a change of circumstances justifying the review of the earlier orders of this court.
8. The appellants have argued that they have been following up proceedings within the lower court but to date the proceedings have not been typed making it difficult for them to file the record of appeal and set down the appeal for hearing.
9. As a result, the appellants have argued that the continued delay exposes them to risk of serving a substantial part of the sentence before the appeal is heard and determined.
10. The appellants contend that they have so far served a period of over 1 year having been sentenced on the 6 th November 2024 thus they stand to be highly prejudiced should their respective appeals succeed.
11. The appellants contend that there is no way of telling how long it will take for the chief Magistrates Court to type the proceedings.
12. Further the appellants have asked this court to consider that since 16 th November 2024 when this court ordered that the proceedings be fast tracked, the registry has been unable to have them ready and supplied to the appellants.
13. The appellants have urged the court to exercise its jurisdiction in terms of Section 357 the Criminal Procedure Code and grant bail pending appeal to the appellants.
14. The appellants urged the court to consider that they cannot even demonstrate effectively how the appeal has overwhelming chances of success because they do not have a copy of the proceedings.
15. The appellants simply urged the court to look at the Petition of appeal and grant the bail pending appeal on the basis of exceptional circumstances.
16. The state through Ms Ogega prosecution counsel conceded that the proceedings have delayed.
17. According to counsel, the delay cannot be blamed on the appellants as well as the respondents.
18. The problem lies with the court lies the court needs to take up the matter with the relevant officers of the court.
19. Ms Ogega however urged the court to give the Deputy Registrar of the court one more chance to process the proceedings.
20. Counsel for the state also conceded that the appellants are indeed likely to serve a substantial part of their respective sentences.
21. Ms. Miima for the appellants argued that the deputy registrar and the registry have had enough time to process the proceedings thus the court should not indulge them any further.
22. This court has considered the application and is persuaded that there has been undue delay in processing the proceedings.
23. The appellants cannot in the circumstances take steps to set down the appeal for hearing.
24. The appellants cannot be blamed for the delay.
25. It is indeed true that for an appellant to be able to canvass the issue of the overwhelming chances of success of the appeal one would require a copy of the proceedings unless of course if the appeal is premised purely on a point of law.
26. The existence of exceptional circumstances in an appeal is by itself a ground for consideration in an application for bail pending appeal.
27. Inability of the court to process proceedings expeditiously would in my view constitute an exceptional circumstance.
28. It becomes even more critical where the appellant is serving a relatively short term of imprisonment.
29. The appellants are serving sentences of 7 and 5 years respectively and have so far served 1 year and a few days.
30. The court is alive to the fact that the offenses with which the two appellants were charged with are offences in which the appellants would be entitled to remission of sentence thus the concern that they are likely to serve a substantial part of the sentence is well founded.
31. If the appellants are not granted bail pending appeal they are likely to serve a substantial part of the sentence to their prejudice.
32. In Jivraj Shah v Republic [1986] KLR 605 the court laid down the principles as follows;"
2. (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.
3. (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.
4. (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."
33. The court relying on the afore quoted decision is persuaded that the appellants have satisfied the exceptional circumstances test thus their prayer for bail ought to be granted and is hereby granted.
34. The question of bail is one that can be revisited by a court in the course of proceedings. The appeal in this matter is still pending and the appellants are unable to prosecute the same simply because the court has been unable to provide them with copies of the proceedings yet that is their right.
35. The Criminal Procedure Code under section 170 specifically provides:
Copy of judgment, etc., to be given to accused on application
On the application of the accused person, a copy of the judgment, or, when he so desires, a translation in his own language, if practicable, shall be given to him without delay.
36. The delay in the processing of proceedings and supply of the same to an accused person who has been convicted interferes with their right to a fair hearing on appeal and the expeditious disposal of the appeal.
37. It follows therefore where an appeal cannot be expeditiously prosecuted for reasons beyond the appellants control the court must be able to carefully balance the scales of justice and obviate a situation where an appellant remains in custody only for them to succeed on appeal much later.
38. The appellant must not be put in a situation where at the time of prosecuting the appeal, has already served sentence.
39. It is the duty of the court under Article 159 of the constitution to ensure that proceedings are conducted expeditiously and that extends to hearing of appeals.
40. In light of the above this court finds that there is undue delay in processing the proceedings which in effect is prejudicial to the appellants.
41. I have no doubt that the appellants are likely to serve a substantial part of the sentence before the appeal is heard.
42. In the circumstances I find and hold that there is reason for the court to review its earlier ruling and admit the appellant to bail in the following terms:-
a) Each appellant may be released on a bond of Kenyan shillings 3 million or an alternative of cash bail Kshs.1,000,000.
b) The appellants shall appear for mention of the appeal at least once every month virtually to ensure that the appeal is processed without delay. The appeal will be mentioned on 19 th January 2026.
43. It is so ordered.
2. The appellants immediately thereafter moved the court by way of a notice of motion seeking to be admitted to bail pending appeal.
3. This court considered the matter and delivered a Ruling on the 16 th November 2024 declining to admit them to be bail pending appeal.
4. In the ruling rendered on the 16 th November 2024 this court stated:
“ the arguments made in respect of the respective sentences by each of the appellants touched on the severity of sentence thus even assuming their respective appeals on sentence were to succeed that could only affect the length of time to be served. This court having perused the lower court file finds that there is no possibility that this appeal will unnecessarily be delayed and therefore finds that there are no special or exceptional circumstances to grant bail pending appeal.”
5. The applicants have by way of a notice of motion moved court for the following orders:
1. THAT this Application be certified as urgent and be heard ex-parte in
the first instant due to its urgency on priority basis.
2. THAT the Applicant herein be admitted to Bail Pending the Hearing and Determination of his Appeal that has already been filed herein.
3. THAT the cost of this application be borne by the Cause.
ON THE GROUNDS THAT:
a) THAT the Appellant/Applicant being dissatisfied of the
Judgment/conviction of the court delivered on 31st October 2024 and sentence on 6th November 2024 has exercised his rights to Petition an Appeal against the said conviction and sentence.
b) THAT the Applicant/Appellant's Petition of Appeal has high chances
of success.
c) THAT the Petition of Appeal is both against the Conviction and
sentence.
d) THAT from inception of the charges way back on 18th November
2015 the Appellant/Applicant has been out on bond/cash bail and he has diligently attended court and abide by the terms of the bond/bail.
e) THAT the Appellant/Applicant is a civil servant and has a place on
board with no likelihood of absconding and /or abusing the bond/bail terms.
f) THAT the Appellant/Applicant is not a flight risk as his family resides
within the jurisdiction of the court.
g) THAT the Appellant/Applicant herein is sickly and has hypertension.
h) THAT this Application is made in good faith and in the interest of THAS justice.
6. The appearance of acute that there are grounds that necessitate the review of the Ruling declining to admit them to bail pending appeal.
7. The appellants argue that there is a change of circumstances justifying the review of the earlier orders of this court.
8. The appellants have argued that they have been following up proceedings within the lower court but to date the proceedings have not been typed making it difficult for them to file the record of appeal and set down the appeal for hearing.
9. As a result, the appellants have argued that the continued delay exposes them to risk of serving a substantial part of the sentence before the appeal is heard and determined.
10. The appellants contend that they have so far served a period of over 1 year having been sentenced on the 6 th November 2024 thus they stand to be highly prejudiced should their respective appeals succeed.
11. The appellants contend that there is no way of telling how long it will take for the chief Magistrates Court to type the proceedings.
12. Further the appellants have asked this court to consider that since 16 th November 2024 when this court ordered that the proceedings be fast tracked, the registry has been unable to have them ready and supplied to the appellants.
13. The appellants have urged the court to exercise its jurisdiction in terms of Section 357 the Criminal Procedure Code and grant bail pending appeal to the appellants.
14. The appellants urged the court to consider that they cannot even demonstrate effectively how the appeal has overwhelming chances of success because they do not have a copy of the proceedings.
15. The appellants simply urged the court to look at the Petition of appeal and grant the bail pending appeal on the basis of exceptional circumstances.
16. The state through Ms Ogega prosecution counsel conceded that the proceedings have delayed.
17. According to counsel, the delay cannot be blamed on the appellants as well as the respondents.
18. The problem lies with the court lies the court needs to take up the matter with the relevant officers of the court.
19. Ms Ogega however urged the court to give the Deputy Registrar of the court one more chance to process the proceedings.
20. Counsel for the state also conceded that the appellants are indeed likely to serve a substantial part of their respective sentences.
21. Ms. Miima for the appellants argued that the deputy registrar and the registry have had enough time to process the proceedings thus the court should not indulge them any further.
22. This court has considered the application and is persuaded that there has been undue delay in processing the proceedings.
23. The appellants cannot in the circumstances take steps to set down the appeal for hearing.
24. The appellants cannot be blamed for the delay.
25. It is indeed true that for an appellant to be able to canvass the issue of the overwhelming chances of success of the appeal one would require a copy of the proceedings unless of course if the appeal is premised purely on a point of law.
26. The existence of exceptional circumstances in an appeal is by itself a ground for consideration in an application for bail pending appeal.
27. Inability of the court to process proceedings expeditiously would in my view constitute an exceptional circumstance.
28. It becomes even more critical where the appellant is serving a relatively short term of imprisonment.
29. The appellants are serving sentences of 7 and 5 years respectively and have so far served 1 year and a few days.
30. The court is alive to the fact that the offenses with which the two appellants were charged with are offences in which the appellants would be entitled to remission of sentence thus the concern that they are likely to serve a substantial part of the sentence is well founded.
31. If the appellants are not granted bail pending appeal they are likely to serve a substantial part of the sentence to their prejudice.
32. In Jivraj Shah v Republic [1986] KLR 605 the court laid down the principles as follows;"
2. (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.
3. (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.
4. (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."
33. The court relying on the afore quoted decision is persuaded that the appellants have satisfied the exceptional circumstances test thus their prayer for bail ought to be granted and is hereby granted.
34. The question of bail is one that can be revisited by a court in the course of proceedings. The appeal in this matter is still pending and the appellants are unable to prosecute the same simply because the court has been unable to provide them with copies of the proceedings yet that is their right.
35. The Criminal Procedure Code under section 170 specifically provides:
Copy of judgment, etc., to be given to accused on application
On the application of the accused person, a copy of the judgment, or, when he so desires, a translation in his own language, if practicable, shall be given to him without delay.
36. The delay in the processing of proceedings and supply of the same to an accused person who has been convicted interferes with their right to a fair hearing on appeal and the expeditious disposal of the appeal.
37. It follows therefore where an appeal cannot be expeditiously prosecuted for reasons beyond the appellants control the court must be able to carefully balance the scales of justice and obviate a situation where an appellant remains in custody only for them to succeed on appeal much later.
38. The appellant must not be put in a situation where at the time of prosecuting the appeal, has already served sentence.
39. It is the duty of the court under Article 159 of the constitution to ensure that proceedings are conducted expeditiously and that extends to hearing of appeals.
40. In light of the above this court finds that there is undue delay in processing the proceedings which in effect is prejudicial to the appellants.
41. I have no doubt that the appellants are likely to serve a substantial part of the sentence before the appeal is heard.
42. In the circumstances I find and hold that there is reason for the court to review its earlier ruling and admit the appellant to bail in the following terms:-
a) Each appellant may be released on a bond of Kenyan shillings 3 million or an alternative of cash bail Kshs.1,000,000.
b) The appellants shall appear for mention of the appeal at least once every month virtually to ensure that the appeal is processed without delay. The appeal will be mentioned on 19 th January 2026.
43. It is so ordered.