REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E055 OF 2026
MICHAEL MATU MUTUA......................................................................APPELLANT
VERSUS
REPUBLIC..........................................................................................RESPONDENT
RULING
1. The Appellant/Applicant Michael Matu Mutua was charged with the offence of Grievous Harm contrary to Section 234 of the Penal Code. He was convicted and sentenced to sixteen (16) months' imprisonment. The Appellant being aggrieved by the conviction and sentence of the trial, filed a Petition of Appeal dated 20th May 2026. He has now filed a Notice of Motion application dated 9th June 2026 seeking to be admitted to bond/bail pending the hearing and determination of the appeal filed herein.
2. The application is based on the following grounds that :
a) The appellant/applicant herein was convicted before the court in Kangundo Chief Magistrate's Criminal Case No. E748 of 2023; R -Vs Michael Matu Mutua for the offence of grievous harm and sentenced to one and a half years' imprisonment on 12th May 2026;
b) The appellant/applicant herein has since preferred an appeal against the conviction and sentence set out herein above and his appeal has overwhelming chances of success; The particulars of the charge and the evidence adduced failed to establish the statutory ingredients of grievous harm as defined under section 231 of the Penal Code, yet the trial court nevertheless convicted the appellant.
c) The evidence before the trial court failed to establish beyond reasonable doubt that the appellant intentionally inflicted the injuries complained of or that the appellant/applicant was the perpetrator of the actions complained of.
d) There exist exceptional circumstances warranting the admission of the appellant/applicant to bail pending appeal; the appellant/ applicant is a first offender who has shown a history of compliance with the trial court's bail conditions,
e) The appellant/applicant suffers from constant coughs, dysphoria, asthenia and was diagnosed with pneumonia and asthma thereby demonstrating exceptional circumstances warranting his admission to bail pending appeal;
f) The appellant/applicant herein, who was sentenced to sixteen (16) months' imprisonment is may very well serve a substantial portion or the entirety of the sentence before the appeal herein is heard.
g) The interest of justice therefore favours a preservation of the appellant's liberty pending hearing and determination of the appeal.
3. The application is further supported by a supporting affidavit sworn by the Applicant in 9th June 2026.
4. The Respondent opposed the application and filed grounds of opposition dated 6th July 2026 as follows, that:
a. the applicant/appellant has not demonstrated in his application that the grounds stated in his Petition of appeal are arguable with possible chances of success.
b. the applicant/appellant has not demonstrated unusual or exceptional circumstances while may warrant the release of the applicant on bond appeal.
c. the applicant/appellant has not demonstrated to this court that the prison authorities will not be able to attend to his ailments as asserted in the application. Further, the medical notes attached do not disclose ailments that warrant special attention that the prison authorities are not able to handle within the prison health facilities.
d. the previous good character of the applicant/appellant do not constitute exceptional circumstances.
e. a solemn assertion by an applicant that he will not abscond when released is not sufficient ground to release a convict on bond pending appeal.
f. an assertion that the High Court station has heavy work load is not sufficient ground to warrant a convict be released on bond pending appeal.
g. the applicant has not demonstrated that the prison authorities are not able to continue to care for him on his said medical condition.
h. by failing to demonstrate that the appeal has high chances of success, the applicant/appellant has by extension failed to demonstrate that he will have served a substantial part of the sentence by the time the appeal is heard and determined.
5. Parties requested the court to consider the application and the grounds of opposition and proceed to make a determination.
6. I have duly considered the application and the grounds of opposition filed.
7. The only issue before this court for determination is whether the applicant/ appellant should be admitted to bond/bail pending Appeal.
8. The applicant/appellant was presumed innocent and was granted bond pending the hearing and determination of the case before the trial court pursuant to the provisions of the cited Articles 49(1)(h) and 50 (2) of the Constitution. Following the conviction and sentence thereafter by the trial court, the Appellant’s presumption of innocence was discharged.
9. The right to bail pending Appeal is premised on Section 357 (1) of the Criminal Procedure Code which states that:
“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.”
10. Under Article 49 of the Constitution of Kenya, 2010, a person awaiting trial is entitled to bail as a matter of Right. That right can only be taken away where the prosecution demonstrates that there are compelling reasons to deny it. However, bail pending Appeal is at the discretion of the court and hence the onus is on the Applicant to convince the court as to why the discretion should be exercised in his favour (See: Charles Owanga Alouch v DPP [2015] eKLR)
11. In the case of Chimambhai v Republic 1971 EA 343, J. Harris made another observation in such an application when he stated:
“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”
12. The principles for granting bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles 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.”
13. Thus, the Appellant needs to demonstrate that there are exceptional circumstances warranting his release on bail, that the appeal has overwhelming chances of success and that he is likely to have served a substantial part of the sentence before the appeal is heard and determined.
14. The applicant/appellant contends that he has been convicted to sixteen (16) months' imprisonment is likely to serve his entire sentence before the instant appeal is heard and determined. If the orders are not granted, he stands to suffer irreparable prejudice by serving his entire sentence before the appeal herein is heard and determined.
15. This court has confirmed from the trial court’s judgement filed with the application that, the applicant was convicted on 12th May 2026 to serve sixteen (16) months’ imprisonment so far by the date of delivery of this ruling on 24th July 2026, he will have served two (2) months and twelve (12) days. The High Court will be proceeding for the August 2026 recess from 1st August 2026 and will be resuming on 15th September 2026. Thereafter this court will be proceeding on its annual leave from 16th September 2026 to 5th October 2026, all these is expected to take almost another three months. Clearly by the time this court resumes and directions on the appeal are taken and a judgement date reserved, the applicant will have served a substantial part of the sentence by the time the appeal is heard and determined.
16. Based on the foregoing, this court finds that the applicant/appellant has demonstrated that there is an exceptional circumstance warranting his release on bail; that he is likely to have served a substantial part of the sentence before the appeal is heard and determined.
17. In the premises therefore, I make the following orders:-
a. Pending the hearing and determination of this appeal, the Applicant/Appellant is admitted to a bond of Kshs.100,000/= in the alternative to a cash bail of Kshs.30,000/=.
b. The Appellant’s Counsel is directed to prepare, file and serve the Record of Appeal within thirty days of this ruling.
c. A mention date to be fixed for directions on the disposal of the appeal.
18. Orders accordingly.
RULING DATED & SIGNED AT MACHAKOS THIS 24TH July 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH July 2026
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E055 OF 2026
MICHAEL MATU MUTUA......................................................................APPELLANT
VERSUS
REPUBLIC..........................................................................................RESPONDENT
RULING
1. The Appellant/Applicant Michael Matu Mutua was charged with the offence of Grievous Harm contrary to Section 234 of the Penal Code. He was convicted and sentenced to sixteen (16) months' imprisonment. The Appellant being aggrieved by the conviction and sentence of the trial, filed a Petition of Appeal dated 20th May 2026. He has now filed a Notice of Motion application dated 9th June 2026 seeking to be admitted to bond/bail pending the hearing and determination of the appeal filed herein.
2. The application is based on the following grounds that :
a) The appellant/applicant herein was convicted before the court in Kangundo Chief Magistrate's Criminal Case No. E748 of 2023; R -Vs Michael Matu Mutua for the offence of grievous harm and sentenced to one and a half years' imprisonment on 12th May 2026;
b) The appellant/applicant herein has since preferred an appeal against the conviction and sentence set out herein above and his appeal has overwhelming chances of success; The particulars of the charge and the evidence adduced failed to establish the statutory ingredients of grievous harm as defined under section 231 of the Penal Code, yet the trial court nevertheless convicted the appellant.
c) The evidence before the trial court failed to establish beyond reasonable doubt that the appellant intentionally inflicted the injuries complained of or that the appellant/applicant was the perpetrator of the actions complained of.
d) There exist exceptional circumstances warranting the admission of the appellant/applicant to bail pending appeal; the appellant/ applicant is a first offender who has shown a history of compliance with the trial court's bail conditions,
e) The appellant/applicant suffers from constant coughs, dysphoria, asthenia and was diagnosed with pneumonia and asthma thereby demonstrating exceptional circumstances warranting his admission to bail pending appeal;
f) The appellant/applicant herein, who was sentenced to sixteen (16) months' imprisonment is may very well serve a substantial portion or the entirety of the sentence before the appeal herein is heard.
g) The interest of justice therefore favours a preservation of the appellant's liberty pending hearing and determination of the appeal.
3. The application is further supported by a supporting affidavit sworn by the Applicant in 9th June 2026.
4. The Respondent opposed the application and filed grounds of opposition dated 6th July 2026 as follows, that:
a. the applicant/appellant has not demonstrated in his application that the grounds stated in his Petition of appeal are arguable with possible chances of success.
b. the applicant/appellant has not demonstrated unusual or exceptional circumstances while may warrant the release of the applicant on bond appeal.
c. the applicant/appellant has not demonstrated to this court that the prison authorities will not be able to attend to his ailments as asserted in the application. Further, the medical notes attached do not disclose ailments that warrant special attention that the prison authorities are not able to handle within the prison health facilities.
d. the previous good character of the applicant/appellant do not constitute exceptional circumstances.
e. a solemn assertion by an applicant that he will not abscond when released is not sufficient ground to release a convict on bond pending appeal.
f. an assertion that the High Court station has heavy work load is not sufficient ground to warrant a convict be released on bond pending appeal.
g. the applicant has not demonstrated that the prison authorities are not able to continue to care for him on his said medical condition.
h. by failing to demonstrate that the appeal has high chances of success, the applicant/appellant has by extension failed to demonstrate that he will have served a substantial part of the sentence by the time the appeal is heard and determined.
5. Parties requested the court to consider the application and the grounds of opposition and proceed to make a determination.
6. I have duly considered the application and the grounds of opposition filed.
7. The only issue before this court for determination is whether the applicant/ appellant should be admitted to bond/bail pending Appeal.
8. The applicant/appellant was presumed innocent and was granted bond pending the hearing and determination of the case before the trial court pursuant to the provisions of the cited Articles 49(1)(h) and 50 (2) of the Constitution. Following the conviction and sentence thereafter by the trial court, the Appellant’s presumption of innocence was discharged.
9. The right to bail pending Appeal is premised on Section 357 (1) of the Criminal Procedure Code which states that:
“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.”
10. Under Article 49 of the Constitution of Kenya, 2010, a person awaiting trial is entitled to bail as a matter of Right. That right can only be taken away where the prosecution demonstrates that there are compelling reasons to deny it. However, bail pending Appeal is at the discretion of the court and hence the onus is on the Applicant to convince the court as to why the discretion should be exercised in his favour (See: Charles Owanga Alouch v DPP [2015] eKLR)
11. In the case of Chimambhai v Republic 1971 EA 343, J. Harris made another observation in such an application when he stated:
“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”
12. The principles for granting bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles 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.”
13. Thus, the Appellant needs to demonstrate that there are exceptional circumstances warranting his release on bail, that the appeal has overwhelming chances of success and that he is likely to have served a substantial part of the sentence before the appeal is heard and determined.
14. The applicant/appellant contends that he has been convicted to sixteen (16) months' imprisonment is likely to serve his entire sentence before the instant appeal is heard and determined. If the orders are not granted, he stands to suffer irreparable prejudice by serving his entire sentence before the appeal herein is heard and determined.
15. This court has confirmed from the trial court’s judgement filed with the application that, the applicant was convicted on 12th May 2026 to serve sixteen (16) months’ imprisonment so far by the date of delivery of this ruling on 24th July 2026, he will have served two (2) months and twelve (12) days. The High Court will be proceeding for the August 2026 recess from 1st August 2026 and will be resuming on 15th September 2026. Thereafter this court will be proceeding on its annual leave from 16th September 2026 to 5th October 2026, all these is expected to take almost another three months. Clearly by the time this court resumes and directions on the appeal are taken and a judgement date reserved, the applicant will have served a substantial part of the sentence by the time the appeal is heard and determined.
16. Based on the foregoing, this court finds that the applicant/appellant has demonstrated that there is an exceptional circumstance warranting his release on bail; that he is likely to have served a substantial part of the sentence before the appeal is heard and determined.
17. In the premises therefore, I make the following orders:-
a. Pending the hearing and determination of this appeal, the Applicant/Appellant is admitted to a bond of Kshs.100,000/= in the alternative to a cash bail of Kshs.30,000/=.
b. The Appellant’s Counsel is directed to prepare, file and serve the Record of Appeal within thirty days of this ruling.
c. A mention date to be fixed for directions on the disposal of the appeal.
18. Orders accordingly.
RULING DATED & SIGNED AT MACHAKOS THIS 24TH July 2026
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 24TH July 2026