1. By his undated Application, the Applicant seeks that he be admitted to bail pending appeal. In his affidavit in support of the Application, the Applicant stated that he was convicted of the offence of defilement and sentenced to 20 years imprisonment in Malindi Sexual Offences Case No. 23 of 2025.
2. He stated that he has filed Appeal No. E122 of 2025 which he said is arguable and raises triable issues. He stated that he is not a flight risk and that he did not abscond when admitted to bond by the trial court. He further stated that he is likely to spend a substantial part of his sentence pending the appeal which would prejudice him. Further, that he is the sole breadwinner of his mother, wife and 4 children. The Applicant further states that the prosecution did not prove its case to the required standard.
3. Although the Respondent’s counsel told the Court that he had filed grounds of opposition, none was in the case tracking system. The Application is thus undefended.
4. The law empowers this Court to consider and if persuaded, grant bail to a convicted person, pending appeal. Section 357 of the Criminal Procedure Code makes provision for admission to bail or suspension of sentence pending appeal. Subsection (1) provides as follows:
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.
5. Article 49(1)(h) of the Constitution guarantees to every accused person the right to bond or bail. This right is however not available to a person convicted and sentenced after trial. There is a distinction between and accused person and a convicted person and following conviction, different principles apply. This was the holding in Masrani v R (1960) EA 321 where the Court of Appeal stated:
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.
6. The orders sought by the Applicant are discretionary. In the case of Jivraj Shah v Republic [1986] eKLR the Court of Appeal articulated the principles to consider in an application for admission to bail pending appeal as follows:
There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist.
7. In cases where bail is sought after conviction and pending appeal, the onus is on the applicant to demonstrate the existence of exceptional or unusual circumstances or such circumstances as would lead this Court to fairly conclude that it is in the interests of justice to grant bail.
8. The Applicant averred that he is the sole bread winner for his mother, wife and 4 children. He did not however place any evidence before the Court to support this claim. No particulars of his mother, wife and children were given such as names and respective ages were provided. In any event, the fact of family members depending on him does not constitute exceptional or unusual circumstances to warrant the grant of the orders sought.
9. On probability of success of the appeal and why justice requires that bail should be granted, the Applicant did not place any material before the Court to demonstrate this. All he stated was that he has an arguable appeal that raises triable issues. He has also not demonstrated that justice requires that he should be released on bail.
10. The Applicant was sentenced to 20 years imprisonment on 18.12.25. He has already filed his appeal. As such, by the time the appeal is heard and determined, the sentence or substantial part of it will not have been served.
11. The critical difference between bail pending trial and bail pending appeal is that a person seeking bail pending appeal lacks the presumption of innocence that is guaranteed under Article 50(2)(a) of the Constitution. Such person is already convicted and serving sentence, as in the case before me and the likelihood of absconding is very high.
12. In the end and in view of the foregoing, I am not persuaded that there exist any exceptional or unusual circumstances to warrant the grant of bail to the Applicant pending appeal. Accordingly, the Application is hereby declined.
DATED and DELIVERED in MALINDI this 31st day of July 2026
2. He stated that he has filed Appeal No. E122 of 2025 which he said is arguable and raises triable issues. He stated that he is not a flight risk and that he did not abscond when admitted to bond by the trial court. He further stated that he is likely to spend a substantial part of his sentence pending the appeal which would prejudice him. Further, that he is the sole breadwinner of his mother, wife and 4 children. The Applicant further states that the prosecution did not prove its case to the required standard.
3. Although the Respondent’s counsel told the Court that he had filed grounds of opposition, none was in the case tracking system. The Application is thus undefended.
4. The law empowers this Court to consider and if persuaded, grant bail to a convicted person, pending appeal. Section 357 of the Criminal Procedure Code makes provision for admission to bail or suspension of sentence pending appeal. Subsection (1) provides as follows:
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.
5. Article 49(1)(h) of the Constitution guarantees to every accused person the right to bond or bail. This right is however not available to a person convicted and sentenced after trial. There is a distinction between and accused person and a convicted person and following conviction, different principles apply. This was the holding in Masrani v R (1960) EA 321 where the Court of Appeal stated:
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.
6. The orders sought by the Applicant are discretionary. In the case of Jivraj Shah v Republic [1986] eKLR the Court of Appeal articulated the principles to consider in an application for admission to bail pending appeal as follows:
There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist.
7. In cases where bail is sought after conviction and pending appeal, the onus is on the applicant to demonstrate the existence of exceptional or unusual circumstances or such circumstances as would lead this Court to fairly conclude that it is in the interests of justice to grant bail.
8. The Applicant averred that he is the sole bread winner for his mother, wife and 4 children. He did not however place any evidence before the Court to support this claim. No particulars of his mother, wife and children were given such as names and respective ages were provided. In any event, the fact of family members depending on him does not constitute exceptional or unusual circumstances to warrant the grant of the orders sought.
9. On probability of success of the appeal and why justice requires that bail should be granted, the Applicant did not place any material before the Court to demonstrate this. All he stated was that he has an arguable appeal that raises triable issues. He has also not demonstrated that justice requires that he should be released on bail.
10. The Applicant was sentenced to 20 years imprisonment on 18.12.25. He has already filed his appeal. As such, by the time the appeal is heard and determined, the sentence or substantial part of it will not have been served.
11. The critical difference between bail pending trial and bail pending appeal is that a person seeking bail pending appeal lacks the presumption of innocence that is guaranteed under Article 50(2)(a) of the Constitution. Such person is already convicted and serving sentence, as in the case before me and the likelihood of absconding is very high.
12. In the end and in view of the foregoing, I am not persuaded that there exist any exceptional or unusual circumstances to warrant the grant of bail to the Applicant pending appeal. Accordingly, the Application is hereby declined.
DATED and DELIVERED in MALINDI this 31st day of July 2026