(Being an appeal from the judgement and sentence of Honourable D.Odhiambo (SRM)
delivered on 25 th September 2025 in Mombasa MCCR no. E1174 OF 2023 Rep vs Mnyika Mwadimi Kasidi & Bora Baraza)
1. By a Notice of Motion dated 15 th October 2025 brought under Articles 47, 50 & 51 of the Constitution of Kenya 2010 and Section 357 of the CPC, the appellant moved this court for ORDERS:
a) Spent
b) That the Appellants/Applicants herein be granted favourable bond pending hearing of this appeal.
c) That this Honourable court do make any other order it deems fit in the circumstances.
2. The application is propped by the grounds on its face and the affidavit of Mnyika Mwadimi Kasidi and Bora Baraza both sworn on 15 th October 2025.
3. They state that they were jointly charged with the offence of robbery with violence contrary to Section 295 as read with subsection 296 (2) of the Penal Code. The applicants were subsequently convicted and sentenced to 10 years’ imprisonment which they have since appealed and now prays for bond/bail pending appeal.
4. I have considered the application filed, the affidavit in support, the submissions on record and the bail information report dated 27 th November 2025. 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 applicants were jointly charged with the offence of robbery with violence contrary to Section 295 as read with subsection 296 (2) of the Penal Code.
10. The particulars of the charges are that on 19 th June 2023 at around 1930hrs at Nyumba ya meli area in Likoni Sub-County within Mombasa County, the accused jointly with others not before court robbed Chengo Maluki Kidinya his mobile phone make Tecno L8 silvery in Color worth sh. 5,600 and cash money worth sh. 1,500/- and immediately before such robbery used actual violence to the said Chengo Maluki Kidinya.
11. As grounds for their application of bond/bail pending appeal, the applicants both argue that they have an arguable appeal with high chances of success. Mnyika Mwadimi Kasidi states that he has a young a family consisting of his wife and 6 children who rely on him to cater for their daily needs. Bora Baraza states that he has a wife who is pregnant with their first child. They are ready to strictly comply with any conditions that this court may impose for granting of bond and they will endeavor to appear before this court whenever required to do so.
12. 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.”
13. 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 they have young families who rely on them to cater for their daily needs is not an exceptional or unusual circumstances as highlighted above.
14. 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 10 years imprisonment.
15. 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.
16. 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.
17. I further note that the applicant was convicted on 25 th September 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.
18. 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;-
MR NYARANGA HOLDING BRIEF FOR MR OGUNA FOR THE APPLICANT
MR NGIRI AND MR SIRIMA FOR THE RESPONDENT
BEBORA COURT ASSISTANT
delivered on 25 th September 2025 in Mombasa MCCR no. E1174 OF 2023 Rep vs Mnyika Mwadimi Kasidi & Bora Baraza)
1. By a Notice of Motion dated 15 th October 2025 brought under Articles 47, 50 & 51 of the Constitution of Kenya 2010 and Section 357 of the CPC, the appellant moved this court for ORDERS:
a) Spent
b) That the Appellants/Applicants herein be granted favourable bond pending hearing of this appeal.
c) That this Honourable court do make any other order it deems fit in the circumstances.
2. The application is propped by the grounds on its face and the affidavit of Mnyika Mwadimi Kasidi and Bora Baraza both sworn on 15 th October 2025.
3. They state that they were jointly charged with the offence of robbery with violence contrary to Section 295 as read with subsection 296 (2) of the Penal Code. The applicants were subsequently convicted and sentenced to 10 years’ imprisonment which they have since appealed and now prays for bond/bail pending appeal.
4. I have considered the application filed, the affidavit in support, the submissions on record and the bail information report dated 27 th November 2025. 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 applicants were jointly charged with the offence of robbery with violence contrary to Section 295 as read with subsection 296 (2) of the Penal Code.
10. The particulars of the charges are that on 19 th June 2023 at around 1930hrs at Nyumba ya meli area in Likoni Sub-County within Mombasa County, the accused jointly with others not before court robbed Chengo Maluki Kidinya his mobile phone make Tecno L8 silvery in Color worth sh. 5,600 and cash money worth sh. 1,500/- and immediately before such robbery used actual violence to the said Chengo Maluki Kidinya.
11. As grounds for their application of bond/bail pending appeal, the applicants both argue that they have an arguable appeal with high chances of success. Mnyika Mwadimi Kasidi states that he has a young a family consisting of his wife and 6 children who rely on him to cater for their daily needs. Bora Baraza states that he has a wife who is pregnant with their first child. They are ready to strictly comply with any conditions that this court may impose for granting of bond and they will endeavor to appear before this court whenever required to do so.
12. 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.”
13. 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 they have young families who rely on them to cater for their daily needs is not an exceptional or unusual circumstances as highlighted above.
14. 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 10 years imprisonment.
15. 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.
16. 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.
17. I further note that the applicant was convicted on 25 th September 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.
18. 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;-
MR NYARANGA HOLDING BRIEF FOR MR OGUNA FOR THE APPLICANT
MR NGIRI AND MR SIRIMA FOR THE RESPONDENT
BEBORA COURT ASSISTANT