1. By a Notice of Motion dated 05/11/2024, the Appellant seeks for bail pending appeal. The application is supported by the grounds on its face and the affidavit of Joseph T. Nzioki sworn on the same day.
2. Mr. Nzioki deponed that he is an Advocate of the High Court of Kenya seized of the matter and with instructions from the Appellant to swear the affidavit.
3. He deponed that in 2023, the Appellant was charged in Kilungu Law courts with the offences of attempted rape and indecent act contrary to section 6 and 11(A) of the Sexual Offences Act. That, he was convicted of the offence of attempted rape and sentenced to 10 years’ imprisonment. A copy of the judgment is exhibited as JTN1. That, being dissatisfied with the conviction, they applied for certified proceedings and the letter to that effect is exhibited as JTN2. That an appeal has also been filed against the said conviction which he believes has overwhelming chances of success for the reasons that the trial magistrate erred in law and fact;
a) By delivering a judgment which was not reflective of the evidence presented by the parties.
b) By failing to appreciate the law as it relates to burden of proof required in proof of criminal cases.
c) By failing to find a doubt in favor of the appellant on the face of glaring contradictions pf prosecution witnesses.
d) By not giving the accused the opportunity to cross-examine prosecution witnesses thereby rendering a miscarriage of justice against him.
e) By failing to appreciate the lack of sufficient evidence against the Appellant.
f) By failing to appreciate that the offence of attempted rape and indecent act had not been proved beyond reasonable doubt.
g) By failing to find that a doubt had been created by the Appellant’s defence.
h) By shifting the burden of proof to the Appellant.
i) By convicting the Appellant on insufficient evidence.
4. He deponed that the applicant’s continued incarceration will be highly prejudicial in the event that the appeal is successful as there is a high chance that he will have served a substantial sentence by the time the appeal is heard and determined.
5. The Respondent opposed the application through the following grounds of opposition;
a) The appeal does not raise arguable issues.
b) The Applicant has not demonstrated compelling reasons to warrant grant of bail/bond pending appeal.
c) The Applicant has not demonstrated exceptional, unusual and extraordinary circumstances that would justify the grant of bail/bond pending appeal.
d) The scales of justice militate in favor of the interests of the society as opposed to the liberty interests of the Appellant.
e) That it is in the interests of justice that the Appellant is not released on bond.
6. Directions were given that the application be canvassed through written submissions. On 27/05/2025 when the parties appeared before court, the Appellant’s counsel confirmed that he had filed the submissions while the prosecution counsel, Mr. Kazungu, withdrew the grounds of opposition and informed court that they were no longer opposed to the application.
7. In order to assist in making a determination, this court called for a pre-bail report which has been duly filed.
The Applicant’s Submissions
8. The Applicant relied on the case of Jiv Raji Shah -vs- R (1966) KLR 605 for the submission that the principal considerations for granting bail pending appeal were stated as follows;
a) 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 interests of justice to grant bail.
b) If it appears prima facie from the totality of 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 exist.
c) 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. Having looked at the application, submissions and pre-bail report, the only issue for determination is whether the applicant should be granted bail pending appeal.
Analysis
10. The basis of bail pending appeal is section 357 of the Criminal Procedure Code which provides that;
“(1) 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 order appealed against shall be suspended pending the hearing of his appeal.
11. In Charles Owanga Aluoch –vs- Director of Public Prosecutions (2015) eKLR the court stated that;
“6. The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court's discretion and upon considering the circumstances of the application…”
12. Consequently, bail pending appeal is discretionary and the Appellant has a duty to demonstrate that the appeal has overwhelming chances of success and that there are exceptional circumstances warranting his release on bail as per the principles enumerated in Jiv Raji Shah -vs- R (supra).
13. The Appellant herein was convicted for attempted rape and sentenced to 10 years in prison.
14. I have perused the petition of appeal, the proceedings before the trial court and the judgment, the appellant raises triable issue and has an arguable appeal.
15. The Appellant was sentenced on 30/10/2024, which means that he has not completed one year in prison. Contrary to the deposition by his counsel, it is unlikely that he will have served a substantial sentence by the time the appeal is heard and determined. Be that as it may, the State is not opposed to the application and the pre-bail report is favorable.
16. Considering that the appellant is a convict until otherwise determined the bail terms must be strict.
17. In the circumstances he is admitted to Bond of Ksh 500,000 with one surety of similar amount.
18. Orders accordingly.
Dated, signed and delivered virtually this 3rd July 2025
Mumbua T Matheka
Judge
CA Chrispol
Appellant present
Mr. Kazungu
Mr. Nzioki for the appellant
2. Mr. Nzioki deponed that he is an Advocate of the High Court of Kenya seized of the matter and with instructions from the Appellant to swear the affidavit.
3. He deponed that in 2023, the Appellant was charged in Kilungu Law courts with the offences of attempted rape and indecent act contrary to section 6 and 11(A) of the Sexual Offences Act. That, he was convicted of the offence of attempted rape and sentenced to 10 years’ imprisonment. A copy of the judgment is exhibited as JTN1. That, being dissatisfied with the conviction, they applied for certified proceedings and the letter to that effect is exhibited as JTN2. That an appeal has also been filed against the said conviction which he believes has overwhelming chances of success for the reasons that the trial magistrate erred in law and fact;
a) By delivering a judgment which was not reflective of the evidence presented by the parties.
b) By failing to appreciate the law as it relates to burden of proof required in proof of criminal cases.
c) By failing to find a doubt in favor of the appellant on the face of glaring contradictions pf prosecution witnesses.
d) By not giving the accused the opportunity to cross-examine prosecution witnesses thereby rendering a miscarriage of justice against him.
e) By failing to appreciate the lack of sufficient evidence against the Appellant.
f) By failing to appreciate that the offence of attempted rape and indecent act had not been proved beyond reasonable doubt.
g) By failing to find that a doubt had been created by the Appellant’s defence.
h) By shifting the burden of proof to the Appellant.
i) By convicting the Appellant on insufficient evidence.
4. He deponed that the applicant’s continued incarceration will be highly prejudicial in the event that the appeal is successful as there is a high chance that he will have served a substantial sentence by the time the appeal is heard and determined.
5. The Respondent opposed the application through the following grounds of opposition;
a) The appeal does not raise arguable issues.
b) The Applicant has not demonstrated compelling reasons to warrant grant of bail/bond pending appeal.
c) The Applicant has not demonstrated exceptional, unusual and extraordinary circumstances that would justify the grant of bail/bond pending appeal.
d) The scales of justice militate in favor of the interests of the society as opposed to the liberty interests of the Appellant.
e) That it is in the interests of justice that the Appellant is not released on bond.
6. Directions were given that the application be canvassed through written submissions. On 27/05/2025 when the parties appeared before court, the Appellant’s counsel confirmed that he had filed the submissions while the prosecution counsel, Mr. Kazungu, withdrew the grounds of opposition and informed court that they were no longer opposed to the application.
7. In order to assist in making a determination, this court called for a pre-bail report which has been duly filed.
The Applicant’s Submissions
8. The Applicant relied on the case of Jiv Raji Shah -vs- R (1966) KLR 605 for the submission that the principal considerations for granting bail pending appeal were stated as follows;
a) 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 interests of justice to grant bail.
b) If it appears prima facie from the totality of 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 exist.
c) 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. Having looked at the application, submissions and pre-bail report, the only issue for determination is whether the applicant should be granted bail pending appeal.
Analysis
10. The basis of bail pending appeal is section 357 of the Criminal Procedure Code which provides that;
“(1) 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 order appealed against shall be suspended pending the hearing of his appeal.
11. In Charles Owanga Aluoch –vs- Director of Public Prosecutions (2015) eKLR the court stated that;
“6. The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court's discretion and upon considering the circumstances of the application…”
12. Consequently, bail pending appeal is discretionary and the Appellant has a duty to demonstrate that the appeal has overwhelming chances of success and that there are exceptional circumstances warranting his release on bail as per the principles enumerated in Jiv Raji Shah -vs- R (supra).
13. The Appellant herein was convicted for attempted rape and sentenced to 10 years in prison.
14. I have perused the petition of appeal, the proceedings before the trial court and the judgment, the appellant raises triable issue and has an arguable appeal.
15. The Appellant was sentenced on 30/10/2024, which means that he has not completed one year in prison. Contrary to the deposition by his counsel, it is unlikely that he will have served a substantial sentence by the time the appeal is heard and determined. Be that as it may, the State is not opposed to the application and the pre-bail report is favorable.
16. Considering that the appellant is a convict until otherwise determined the bail terms must be strict.
17. In the circumstances he is admitted to Bond of Ksh 500,000 with one surety of similar amount.
18. Orders accordingly.
Dated, signed and delivered virtually this 3rd July 2025
Mumbua T Matheka
Judge
CA Chrispol
Appellant present
Mr. Kazungu
Mr. Nzioki for the appellant