(Being an appeal from the judgement and sentence of Honourable Alex Ithuku (CM)
delivered on 8 th July 2025 in Mombasa MCCR SO no. E134 OF 2022 Rep vs Matano Mwinyi)
1. By a Notice of Motion dated 29 th August 2025 brought under Section 357 of the CPC, the appellant moved this court for ORDERS:
a) Spent
b) That the Honourable Court be pleased to admit the Applicant to bail pending hearing and determination of the instant Appeal.
c) That in the alternative, the Honourable Court be pleased to order stay and/or suspension of the execution of sentence in Mombasa MCSO E134 of 2022 pending the hearing and determination of the instant Appeal.
d) That costs of this application be borne by the Respondent.
2. The application is propped by the grounds on its face and the affidavit of Nzioki Nzuli sworn on 29 th August 2025.
3. The Applicant through his advocate states that on 2 nd July 2025 he was convicted and sentenced to serve a custodial sentence of seventeen years and five months without the option of any fine which he has since appealed and now prays for bond/bail pending appeal.
4. I have considered the application filed and the affidavit in support. The issue for consideration is whether the application has merit and what orders this court should make.
5. It is worth noting that the respondent was not opposed to the instant application as at the time of making this determination.
6. Article 50 (2) (q) of the Constitution of Kenya provides:
“Fair hearing.
50. (1) ……..
(2) Every accused person has the right to a fair trial, which
includes the right—
(q) if convicted, to appeal to, or apply for review by, a higher court
as prescribed by law.
7. The provisions of Section 357 (1) of the Criminal Procedure Code provide for admission to bail pending appeal in the following terms;
“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.”
8. In the case of Charles Owanga Aluoch vs Director of Public Prosecutions (2015) it was held that: -
“After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored.
In the case of Jiv Raji Shah v R [1966] KLR 605 , the principle considerations for granting bail pending appeal were stated 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.”
9. Instantly, as earlier noted the applicant was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act. He was convicted and sentenced to serve 17 years and five months imprisonment.
10. As grounds for his application of bond/bail pending appeal, the applicant states that he has an arguable appeal with high chances of success. In his affidavit Nzioki Nzuli states that the applicant has a young family consisting of his one-year-old child and a sickly wife that rely on the Applicant to cater for their daily needs.
11. In the case of Jiv Raji Shah v R [1966] KLR 605 , the Court of Appeal addressed itself on the parameters to be considered by appellate courts in an application for bail pending appeal that:
“(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.”
12. On the aspect of demonstration of exceptional or unusual circumstances, the court observes that, the appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. The averments that he has a young family who rely on him to cater for their daily needs is not an exceptional or unusual circumstances as highlighted above.
13. For what it is worth, at the trial Court the appellant was simply an accused person entitled to his constitutional right of presumption of his innocence until proven guilty. In the instant matter he is a convict serving 17 years and five months’ imprisonment.
14. As to the prima facie likelihood of the success of the appeal, there is little to go by. In my view, in an application for bail pending appeal, the burden weighing against the applicant is to demonstrate to the court through the grounds of appeal set by the petition, that the prima facie has an overwhelming chance of success and not to simply allude out of his opinion of high chances of success of the appeal.
15. This court has considered the grounds set out in the petition of appeal and cautious not to delve deep into the merits of the matter at this stage. Save for the usual grounds of appeal, nothing is deducible on account of some substantial point of law towards an overwhelming chance of success of the appeal.
16. I further note that the applicant was convicted on 2 nd July 2025 it cannot be said that by the time the appeal is heard and determined he will have served a substantial part of the term of sentence which may be irreversible and a great punishment, should the appeal be successful.
17. In the foregoing, the application fails to the extent held hereinabove. The hearing of the Appeal shall be expedited.
DELIVERED, DATED and SIGNED at MOMBASA on this 18 th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
The applicant and his advocate MR. Muthuri
MR.Ngiri for the state
Bebora court assistant
delivered on 8 th July 2025 in Mombasa MCCR SO no. E134 OF 2022 Rep vs Matano Mwinyi)
1. By a Notice of Motion dated 29 th August 2025 brought under Section 357 of the CPC, the appellant moved this court for ORDERS:
a) Spent
b) That the Honourable Court be pleased to admit the Applicant to bail pending hearing and determination of the instant Appeal.
c) That in the alternative, the Honourable Court be pleased to order stay and/or suspension of the execution of sentence in Mombasa MCSO E134 of 2022 pending the hearing and determination of the instant Appeal.
d) That costs of this application be borne by the Respondent.
2. The application is propped by the grounds on its face and the affidavit of Nzioki Nzuli sworn on 29 th August 2025.
3. The Applicant through his advocate states that on 2 nd July 2025 he was convicted and sentenced to serve a custodial sentence of seventeen years and five months without the option of any fine which he has since appealed and now prays for bond/bail pending appeal.
4. I have considered the application filed and the affidavit in support. The issue for consideration is whether the application has merit and what orders this court should make.
5. It is worth noting that the respondent was not opposed to the instant application as at the time of making this determination.
6. Article 50 (2) (q) of the Constitution of Kenya provides:
“Fair hearing.
50. (1) ……..
(2) Every accused person has the right to a fair trial, which
includes the right—
(q) if convicted, to appeal to, or apply for review by, a higher court
as prescribed by law.
7. The provisions of Section 357 (1) of the Criminal Procedure Code provide for admission to bail pending appeal in the following terms;
“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.”
8. In the case of Charles Owanga Aluoch vs Director of Public Prosecutions (2015) it was held that: -
“After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored.
In the case of Jiv Raji Shah v R [1966] KLR 605 , the principle considerations for granting bail pending appeal were stated 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.”
9. Instantly, as earlier noted the applicant was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act. He was convicted and sentenced to serve 17 years and five months imprisonment.
10. As grounds for his application of bond/bail pending appeal, the applicant states that he has an arguable appeal with high chances of success. In his affidavit Nzioki Nzuli states that the applicant has a young family consisting of his one-year-old child and a sickly wife that rely on the Applicant to cater for their daily needs.
11. In the case of Jiv Raji Shah v R [1966] KLR 605 , the Court of Appeal addressed itself on the parameters to be considered by appellate courts in an application for bail pending appeal that:
“(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.”
12. On the aspect of demonstration of exceptional or unusual circumstances, the court observes that, the appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. The averments that he has a young family who rely on him to cater for their daily needs is not an exceptional or unusual circumstances as highlighted above.
13. For what it is worth, at the trial Court the appellant was simply an accused person entitled to his constitutional right of presumption of his innocence until proven guilty. In the instant matter he is a convict serving 17 years and five months’ imprisonment.
14. As to the prima facie likelihood of the success of the appeal, there is little to go by. In my view, in an application for bail pending appeal, the burden weighing against the applicant is to demonstrate to the court through the grounds of appeal set by the petition, that the prima facie has an overwhelming chance of success and not to simply allude out of his opinion of high chances of success of the appeal.
15. This court has considered the grounds set out in the petition of appeal and cautious not to delve deep into the merits of the matter at this stage. Save for the usual grounds of appeal, nothing is deducible on account of some substantial point of law towards an overwhelming chance of success of the appeal.
16. I further note that the applicant was convicted on 2 nd July 2025 it cannot be said that by the time the appeal is heard and determined he will have served a substantial part of the term of sentence which may be irreversible and a great punishment, should the appeal be successful.
17. In the foregoing, the application fails to the extent held hereinabove. The hearing of the Appeal shall be expedited.
DELIVERED, DATED and SIGNED at MOMBASA on this 18 th day of DECEMBER 2025.
Ruling delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
The applicant and his advocate MR. Muthuri
MR.Ngiri for the state
Bebora court assistant