' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E055 OF 2025
MICHAEL KANGARI WAIRIMU…………..……………….…………APPLICANT
VERSUS
REPUBLIC………………………………………………………….………RESPONDENT
RULING
The Applicant was charged with the offence of Obtaining by False Pretences contrary Section 313 of the Penal Code; on the 15/05/2025 he was convicted and fined a sum of Kshs.100,000/- in default to serve Eight (8) months imprisonment; the trial court made an order for restitution and the reimbursement to the complainant the balance of the monies owed in default to serve a further Eighteen (18) months imprisonment; being aggrieved by the judgment he filed the instant appeal against the conviction and sentence.
The application before this court is made under the provisions of Section 357 of the Criminal Procedure Code; the Applicant seeks to be admitted to bail pending a hearing of his appeal; the application is supported by an affidavit made by MICHAEL KANGARI WAIRIMU and the submissions made by counsel for the Applicant.
APPLICANTS SUBMISSIONS
Counsel submitted that the appeal if successful would be rendered nugatory due to the time it would take to hear the appeal; the Applicant would have served most or a good part of his sentence; The Applicant has an arguable appeal against conviction and sentence with high chances of success;
The Applicant has a medical condition that requires that he see a specialist and constant medication; and his continued incarceration would lead to a deterioration of his health; He was not a flight risk and if granted bail pending appeal he would adhere to the terms as directed by the Honourable Court; all through his trial he had duly adhered to the terms of his bail conditions even at the date of judgment when he was convicted and sentenced;
Counsel submitted that the appeal was not frivolous and had overwhelming chances of success;
His prayer was for the Applicant to be admitted to bail pending his appeal being heard and determined; and the terms be as the same as in the lower court.
RESPONDENTS SUBMISSIONS
Prosecuting Counsel for the State Mr. Gacharia opposed the application; Bail pending appeal was not an absolute right like for an accused person. The admission to bail pending appeal is purely discretional to the Court; The Court of Appeal has set the standard to be met for the Court to exercise its discretion in admitting the Applicant to bail pending appeal; case law referred to SOMO vs REPUBLIC- 1976 the main criteria was the existence of overwhelming chances of success of the appeal; the circumstances must disclose the merit of the appeal; No lower court record has been availed to see the set of circumstances and reasons that would guarantee the success of the appeal;
In the case of CHARLES RATEMO MATUMO vs REPUBLIC it was held that the mere fact that Appellant believes that the appeal has high chances of success does not constitute exceptional circumstances; it must go beyond belief; Reference was made to the case of PETER HINGA NGETHO vs REPUBLIC where it was held that not breaching bond terms during trial was not exceptional circumstances for this Court to exercise its discretion.
The Applicant in his Supporting Affidavit pleaded for the court to consider his medical condition but did not disclose the condition nor did he attach any medical records to support that averment; the condition if any can also be managed at the correctional facilities;
The sentences imposed were fair and run consecutively and amount to Two (2) years and the fact that the Applicant may serve a substantial part of it does not constitute exceptional circumstances to invite discretion;
The Respondent prayed that the application be dismissed.
The trial court gave custodial sentence of Eighteen (18) months that was conditional to refund being made but there was misapprehension on the amount to be paid to the Complainant;
Counsel submitted that there no substantial reasons argued to deny the Applicant to be admitted to bail pending appeal; and humbly requested this court to heed the Applicants prayer that he be granted bail
ISSUES FOR DETERMINATION
Whether the Applicant to be admitted to bail pending appeal;
ANALYSIS
The facts of the case are that the Applicant was tried and convicted before the Limuru Chiefs Magistrate ……. for the offence of Obtaining by False Pretence; he was convicted and given a total of 26 months imprisonment; being dissatisfied with this decision he filed the instant appeal; the appellant also filed the instant application for bail pending appeal;
Unlike bail pending trial which is a right, the order sought by the Applicant is discretionary; therefore it is for this court to determine whether the application before it is a suitable case for it to exercise its discretion in favour of the Applicant; the key principles for consideration were set out in the case of JIVRAJ SHAH VS REPUBLIC (1986) KLR 605; these being whether the appeal has high chances of success; the existence of exceptional circumstances and the possibility of delay in determining of the appeal leading to the Applicant having served a substantial part of the sentence;
It was submitted that there was a procedural flaw with respect to Section 200 of the Criminal Procedure Code; the Applicant was not represented by Counsel during the trial in the lower court; that due to the change of magistrates on more than one occasion the Applicant had severally requested the trial court to start de novo; the trial court refused to start the proceedings afresh but ought to have explained to the Applicant that he had the right to recall prosecution witnesses irrespective of whether the testimonies were made under oath or otherwise; this fact is not controverted by the State in its submissions;
It is this courts considered view that this contention is on a substantial point of law which could result in the appeal being allowed; The above consideration is one of the principles upon which a court may grant applicant bail pending appeal and is cited in the case of JIVRAJ SHAH vs REPUBLIC [1986] (supra) where it was held as follows;
“ if it appears prima facie from the totality the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist”.
This court will not belabor itself in addressing the other issues raised by Counsel for the Appellant in his submissions as it is satisfied by the afore-going reasons that this is a suitable case for this Court to exercise of its discretion in favour of the Applicant.
FINDINGS AND DETERMINATION
The application is found to be meritorious and is hereby allowed.
The Applicant may be released on bond pending the hearing of his appeal upon execution of a bond in the sum of Kshs.300,000/-together with one surety of a similar amount.
The Record of Appeal to be filed and served within Forty-Five (45) days;
Mention on 8/10/2025 for Compliance.
Orders Accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 27 TH DAY OF AUGUST, 2025.
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Gacharia – for the State
Lwande - for the Appellant/Applicant
Appellant - Absent
'
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E055 OF 2025
MICHAEL KANGARI WAIRIMU…………..……………….…………APPLICANT
VERSUS
REPUBLIC………………………………………………………….………RESPONDENT
RULING
The Applicant was charged with the offence of Obtaining by False Pretences contrary Section 313 of the Penal Code; on the 15/05/2025 he was convicted and fined a sum of Kshs.100,000/- in default to serve Eight (8) months imprisonment; the trial court made an order for restitution and the reimbursement to the complainant the balance of the monies owed in default to serve a further Eighteen (18) months imprisonment; being aggrieved by the judgment he filed the instant appeal against the conviction and sentence.
The application before this court is made under the provisions of Section 357 of the Criminal Procedure Code; the Applicant seeks to be admitted to bail pending a hearing of his appeal; the application is supported by an affidavit made by MICHAEL KANGARI WAIRIMU and the submissions made by counsel for the Applicant.
APPLICANTS SUBMISSIONS
Counsel submitted that the appeal if successful would be rendered nugatory due to the time it would take to hear the appeal; the Applicant would have served most or a good part of his sentence; The Applicant has an arguable appeal against conviction and sentence with high chances of success;
The Applicant has a medical condition that requires that he see a specialist and constant medication; and his continued incarceration would lead to a deterioration of his health; He was not a flight risk and if granted bail pending appeal he would adhere to the terms as directed by the Honourable Court; all through his trial he had duly adhered to the terms of his bail conditions even at the date of judgment when he was convicted and sentenced;
Counsel submitted that the appeal was not frivolous and had overwhelming chances of success;
His prayer was for the Applicant to be admitted to bail pending his appeal being heard and determined; and the terms be as the same as in the lower court.
RESPONDENTS SUBMISSIONS
Prosecuting Counsel for the State Mr. Gacharia opposed the application; Bail pending appeal was not an absolute right like for an accused person. The admission to bail pending appeal is purely discretional to the Court; The Court of Appeal has set the standard to be met for the Court to exercise its discretion in admitting the Applicant to bail pending appeal; case law referred to SOMO vs REPUBLIC- 1976 the main criteria was the existence of overwhelming chances of success of the appeal; the circumstances must disclose the merit of the appeal; No lower court record has been availed to see the set of circumstances and reasons that would guarantee the success of the appeal;
In the case of CHARLES RATEMO MATUMO vs REPUBLIC it was held that the mere fact that Appellant believes that the appeal has high chances of success does not constitute exceptional circumstances; it must go beyond belief; Reference was made to the case of PETER HINGA NGETHO vs REPUBLIC where it was held that not breaching bond terms during trial was not exceptional circumstances for this Court to exercise its discretion.
The Applicant in his Supporting Affidavit pleaded for the court to consider his medical condition but did not disclose the condition nor did he attach any medical records to support that averment; the condition if any can also be managed at the correctional facilities;
The sentences imposed were fair and run consecutively and amount to Two (2) years and the fact that the Applicant may serve a substantial part of it does not constitute exceptional circumstances to invite discretion;
The Respondent prayed that the application be dismissed.
The trial court gave custodial sentence of Eighteen (18) months that was conditional to refund being made but there was misapprehension on the amount to be paid to the Complainant;
Counsel submitted that there no substantial reasons argued to deny the Applicant to be admitted to bail pending appeal; and humbly requested this court to heed the Applicants prayer that he be granted bail
ISSUES FOR DETERMINATION
Whether the Applicant to be admitted to bail pending appeal;
ANALYSIS
The facts of the case are that the Applicant was tried and convicted before the Limuru Chiefs Magistrate ……. for the offence of Obtaining by False Pretence; he was convicted and given a total of 26 months imprisonment; being dissatisfied with this decision he filed the instant appeal; the appellant also filed the instant application for bail pending appeal;
Unlike bail pending trial which is a right, the order sought by the Applicant is discretionary; therefore it is for this court to determine whether the application before it is a suitable case for it to exercise its discretion in favour of the Applicant; the key principles for consideration were set out in the case of JIVRAJ SHAH VS REPUBLIC (1986) KLR 605; these being whether the appeal has high chances of success; the existence of exceptional circumstances and the possibility of delay in determining of the appeal leading to the Applicant having served a substantial part of the sentence;
It was submitted that there was a procedural flaw with respect to Section 200 of the Criminal Procedure Code; the Applicant was not represented by Counsel during the trial in the lower court; that due to the change of magistrates on more than one occasion the Applicant had severally requested the trial court to start de novo; the trial court refused to start the proceedings afresh but ought to have explained to the Applicant that he had the right to recall prosecution witnesses irrespective of whether the testimonies were made under oath or otherwise; this fact is not controverted by the State in its submissions;
It is this courts considered view that this contention is on a substantial point of law which could result in the appeal being allowed; The above consideration is one of the principles upon which a court may grant applicant bail pending appeal and is cited in the case of JIVRAJ SHAH vs REPUBLIC [1986] (supra) where it was held as follows;
“ if it appears prima facie from the totality the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist”.
This court will not belabor itself in addressing the other issues raised by Counsel for the Appellant in his submissions as it is satisfied by the afore-going reasons that this is a suitable case for this Court to exercise of its discretion in favour of the Applicant.
FINDINGS AND DETERMINATION
The application is found to be meritorious and is hereby allowed.
The Applicant may be released on bond pending the hearing of his appeal upon execution of a bond in the sum of Kshs.300,000/-together with one surety of a similar amount.
The Record of Appeal to be filed and served within Forty-Five (45) days;
Mention on 8/10/2025 for Compliance.
Orders Accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 27 TH DAY OF AUGUST, 2025.
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Gacharia – for the State
Lwande - for the Appellant/Applicant
Appellant - Absent
'