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JudgmentJOHN KINYUA VS The Republic5 min read

JOHN KINYUA VS The Republic

High Court at Embu High Court · · Lucy Njuguna


  1. The appellant/applicant was charged with the offence of defilement contrary to section 8(1) & (2) of the Sexual Offences Act. He was convicted and sentenced to life imprisonment. Being dissatisfied with the decision of the trial court in Siakago MCSO No. E043 of 2022, the appellant/ applicant herein has filed a petition of appeal alongside a notice of motion dated 09th February 2024 seeking orders that:
    1. Spent;
    2. Spent;
    3. The honourable court be pleased to admit the appellant/applicant to reasonable bail and/or bond terms and/or suspend the sentence imposed by the trial magistrate pending the hearing and determination of the appeal herein.
  2. The application is accompanied by a supporting affidavit setting out the grounds upon which the said application is premised. The applicant argues that at the trial court, he was released on bond of Kshs.200,000/= and an alternative cash bail of Kshs.100,000/= and he did not fail to attend court at any point. That the appeal he has lodged has high chances of success. He urged the court to consider his application and grant him bail/ bond pending appeal.
  3. The respondent filed grounds of opposition in which it stated that the application lacks merit as it does not meet the threshold for granting of the orders sought which are discretionary. That the appellant/ applicant has not presented any exceptional circumstances to warrant grant of the orders sought and that the appeal lacks merit.
  4. The court directed that the application be dispensed with by way of written submissions. Only the applicant filed his submissions.
  5. The applicant, in his submissions, relied on the cases of Ibrahim Samon Ali v. Republic (2021) eKLR, George Wambugu Thumbi v. Republic (2018) eKLR and Onsongo v. Republic (2022) eKLR. It was his argument that if at least one of the conditions set in the case of Arvid Patel v. Republic (2003) eKLR is met, the applicant should be granted bail/bond terms. He relied on section 357(1) of the Criminal Procedure Code and submitted that the court can exercise its discretion to grant bail/bond terms pending this appeal which has high chances of success. He stated that he is willing to abide by all the conditions that the court may set. 
  6. I take note of the averments made herein as well as the petition of appeal and I do find that the only issue for determination is whether or not the appellant/ applicant satisfies the parameters for admittance to bond/ bail pending appeal.
  7. To begin with, it must be well understood that an appellate court can only grant bail pending appeal on discretionary basis according to Article 49(1)(h) of the Constitution of Kenya which provides that:-

“An accused 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. On appeal, the appellant/applicant is no longer awaiting trial but rather, he has already been convicted and sentenced and is awaiting hearing of the appeal, thus invoking the application of Section 357 of the Criminal Procedure Rules which provides:

“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:

Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.”

This was the position in the case of Masrani v R [1060] EA 321, where it was held 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. The principles guiding grant of bail pending appeal are set out in the case of Jivraj Shah v Republic [1986] KLR 605 as follows:-

1. The principal contribution 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 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.

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.

  1. On establishment of exceptional circumstances, I am guided by the case of Dominic Karanja v Republic (1986) KLR 612 where the court labored to explain what exception circumstances encompasses. The court stated:

“(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;

(d) …………..”

  1. The appellant/applicant herein stated that he carefully adhered to the bail terms given by the trial court in persuading this court to grant his bail pending appeal and he made a solemn promise to comply with the bail terms if the court grants the orders. Besides this, he has not cited any other exceptional circumstances that would warrant granting of bail. As to the issue of a prima facie case, I have perused the petition of appeal and judgment of the trial court and have noted the appellant/applicant’s grounds for appeal and find that the success or otherwise of the appeal will be adjudged by the court after hearing of the appeal. 
  2. In the upshot, I do find that the appellant/applicant has failed to demonstrate to the court that the orders ought to be granted and that the reasons given in support of the application are insufficient.
  3. I therefore dismiss the application with no order as to costs. I further direct that the appellant herein proceeds swiftly to have this appeal expedited urgently.
  4. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    JOHN KINYUA VS The Republic JOHN KINYUA VS The Republic