(Being an appeal from the judgement of Hon Leah Kisabuli Juma delivered on 7 th November 2025 and the sentence imposed thereafter on 8 th January 2026 in Shanzu Law Courts CR SO no. E091 of 2022)
1. The appellant, Peter Macharia Nganga, by a Notice of Motion dated 27/1/ 2026 the Appellant moved the Court for orders: -
i. Spent
ii. That the Honourable court be pleased to release the Appellant on bail pending the hearing and determination of Appellant’s appeal.
iii. That costs of this application be provided for.
2. The application is propped by the grounds on its face and the affidavit of Peter Macharia Nganga sworn on 27/1/2026.
3. He stated in his affidavit that he was charged with defilement contrary to section 8 (1) (2) of the Sexual Offences Act no. 3 of 2006 Laws of Kenya and an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. He states that he was sentenced and convicted to 15 years imprisonment. Being dissatisfied with the judgement of the lower court and hence this appeal.
4. The state opposed the application vide grounds of opposition dated 24/2/2026. The state avers that bail pending appeal is discretionary as the appellant’s innocence was compromised upon conviction. The appellant cannot invite this court to determine the issues of evidence at this interlocutory stage. Issues of evidence will be evaluated and dealt with by the court during the hearing of the main appeal.
5. The appellant filed his written submissions which I have considered.
Analysis and Determination
6. 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.”
7. Article 49 (1) (h) of the Constitution provides that an accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released, a similar position does not apply for a convicted person.
8. In the case of Charles Owanga Aluoch vs Director of Public Prosecutions (2015) EKLR it was held: -
“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 anchored .”
In the case Jiv Raji Shah vs R 9 (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 facie from the totality of the circumstances that the appeal is likely to be successful on an account of some substantial point 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 are that there is no difference between overwhelming chances of success and a set of cirmcumstances 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 defilement contrary to Sec 8 (1) as read with Sec 8 (2) of the Sexual Offences Act. He was convicted and sentenced to serve 15 years’ imprisonment. His main issue in his application herein is that he was convicted based on contradictory evidence, age was not proved and the documentary evidence were not produced by the investigation officer.
10. In the case of Jivral Shah vs Republic (1980) KLR 605 the Court of Appeal addressed itself on the parameters to be considered by appellate court in an application for bail pending appeal; -
“(a) the principal consideration in an application for bail 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 the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.”
11. 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 fact that the accused person was convicted on contradictory evidence and that the documentary evidence were not produced by the investigation officer are not exceptional or unusual circumstances as highlighted above.
12. As to the prima facie likelihood of the success of the appeal, there is little to go by at this interlocutory stage. 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 he has prima facie chances of success of the appeal. This court has similarly considered the grounds as set out his petition of appeal cautious not delve deep into the merits of the case, and 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.
13. Further, noting that the applicant is serving a sentence of 15 years’ imprisonment recently issued on 8/1/2026, 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.
14. In light of the above, the application fails to the extent held hereinabove. The hearing of the appeal shall be expedited.
DELIVERED, DATED and SIGNED at MOMBASA Virtually on this 19 th day of MARCH 2026.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
MR KARATU for the applicant
Ms Cherop for the state
Bebora court assistant
1. The appellant, Peter Macharia Nganga, by a Notice of Motion dated 27/1/ 2026 the Appellant moved the Court for orders: -
i. Spent
ii. That the Honourable court be pleased to release the Appellant on bail pending the hearing and determination of Appellant’s appeal.
iii. That costs of this application be provided for.
2. The application is propped by the grounds on its face and the affidavit of Peter Macharia Nganga sworn on 27/1/2026.
3. He stated in his affidavit that he was charged with defilement contrary to section 8 (1) (2) of the Sexual Offences Act no. 3 of 2006 Laws of Kenya and an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. He states that he was sentenced and convicted to 15 years imprisonment. Being dissatisfied with the judgement of the lower court and hence this appeal.
4. The state opposed the application vide grounds of opposition dated 24/2/2026. The state avers that bail pending appeal is discretionary as the appellant’s innocence was compromised upon conviction. The appellant cannot invite this court to determine the issues of evidence at this interlocutory stage. Issues of evidence will be evaluated and dealt with by the court during the hearing of the main appeal.
5. The appellant filed his written submissions which I have considered.
Analysis and Determination
6. 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.”
7. Article 49 (1) (h) of the Constitution provides that an accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released, a similar position does not apply for a convicted person.
8. In the case of Charles Owanga Aluoch vs Director of Public Prosecutions (2015) EKLR it was held: -
“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 anchored .”
In the case Jiv Raji Shah vs R 9 (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 facie from the totality of the circumstances that the appeal is likely to be successful on an account of some substantial point 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 are that there is no difference between overwhelming chances of success and a set of cirmcumstances 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 defilement contrary to Sec 8 (1) as read with Sec 8 (2) of the Sexual Offences Act. He was convicted and sentenced to serve 15 years’ imprisonment. His main issue in his application herein is that he was convicted based on contradictory evidence, age was not proved and the documentary evidence were not produced by the investigation officer.
10. In the case of Jivral Shah vs Republic (1980) KLR 605 the Court of Appeal addressed itself on the parameters to be considered by appellate court in an application for bail pending appeal; -
“(a) the principal consideration in an application for bail 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 the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.”
11. 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 fact that the accused person was convicted on contradictory evidence and that the documentary evidence were not produced by the investigation officer are not exceptional or unusual circumstances as highlighted above.
12. As to the prima facie likelihood of the success of the appeal, there is little to go by at this interlocutory stage. 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 he has prima facie chances of success of the appeal. This court has similarly considered the grounds as set out his petition of appeal cautious not delve deep into the merits of the case, and 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.
13. Further, noting that the applicant is serving a sentence of 15 years’ imprisonment recently issued on 8/1/2026, 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.
14. In light of the above, the application fails to the extent held hereinabove. The hearing of the appeal shall be expedited.
DELIVERED, DATED and SIGNED at MOMBASA Virtually on this 19 th day of MARCH 2026.
WENDY KAGENDO MICHENI
JUDGE
In the presence of;-
MR KARATU for the applicant
Ms Cherop for the state
Bebora court assistant