1. The Applicant filed an Amended Notice of Motion dated 22nd May 2026 seeking the following orders:-
i. Spent.
ii. That the Appellant/Applicant be admitted to bond/bail pending the hearing and determination of the Appeal.
iii. That this Honourable Court be pleased to grant such further or other orders as may be just and expedient in the circumstances.
2. The Application was brought under Section 357 of the Criminal Procedure Code and all other enabling provisions of the law. It was supported by the grounds on the face of the Application and the Supporting Affidavit sworn by Ezra Kiplang’at Chepkwony on 22nd May 2026.
3. The Respondent did not file any response to the Application on account of time constraints and the urgency of the matter. The issue however is one of a point of law and any document sought to be relied upon by either of the parties was on record. The need for a written response to the Application was therefore dispensed with.
The Applicant’s Case
3. The Applicant stated that he was charged with the offence of attempted murder contrary to Section 220(a) of the Penal Code, convicted and sentenced to serve ten (10) years imprisonment. He further stated that he lodged an Appeal before this Court vide a Petition of Appeal dated 28th April 2023 and subsequently sought to amend the same through an Amended Petition of Appeal dated 22nd May 2026.
4. The Applicant contended that the Appeal is arguable and has high chances of success as the conviction was against the weight of the evidence and the prosecution failed to prove its case beyond reasonable doubt. He further stated that the trial court disregarded his defence of alibi and improperly shifted the burden of proof to him.
5. It was further the Applicant’s case that the conviction was based on circumstantial evidence and that there was a likelihood that the Appeal would succeed. He expressed apprehension that unless released on bail pending appeal, he risked serving a substantial part of the sentence before the Appeal is heard and determined, thereby rendering the Appeal nugatory.
Applicant’s Submissions
6. Through oral submissions on 28th May 2026, the Applicant submitted that he was a person of good character and that the Respondent had not controverted the facts contained in the Application. He urged the Court to find that he had an unlimited right of appeal and that there remained a possibility that the trial court may have erred.
7. The Applicant submitted that exceptional circumstances include delays in the hearing of an appeal, unavailability or delay in preparation of proceedings, and the likelihood that a substantial part of the sentence may be served before the appeal is heard.
8. He further submitted that he complied with all bail terms issued by the trial court during the pendency of the trial. He placed reliance was placed on the case of Jivraj Shah vs Republic [1986] eKLR where the Court held that:-
“The principal consideration is if there exists exceptional or unusual circumstances upon which this Court can fairly conclude that it is in the interest of justice to grant bail. 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 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.”
10. He also submitted that delays occasioned by typing of proceedings and congestion in the typing pool would prejudice him by prolonging the hearing of the Appeal.
The Respondent’s Submissions
13. The Respondent opposed the Application through oral submissions and submitted that bail pending appeal is not a constitutional right. It was argued that the Applicant was lawfully convicted by a competent court and was therefore serving a lawful sentence.
14. The Respondent further submitted that the principal consideration in an application for bail pending appeal is the existence of exceptional o unusual circumstances warranting the exercise of the Court’s discretion in favour of the Applicant.
15. It was the Respondent’s position that the Applicant had failed to demonstrate any exceptional circumstances to justify release on bail pending appeal. The Respondent submitted that the current practice favours expeditious disposal of appeals and that in this case the Record of Appeal was ready, thereby minimising the likelihood of delay.
16. The Respondent further submitted that assertions that the Applicant is not a flight risk, has a fixed place of abode, family responsibilities, and had complied with previous bail terms are not sufficient grounds for release on bail pending appeal. It was also submitted that the Applicant’s employment status is not a relevant consideration in such an application.
Issue for Determination
17. I have considered the Application, the Supporting Affidavit, the rival submissions by Counsel and the applicable law. In my view, the sole issue for determination is:-
Whether the Applicant has satisfied the conditions for grant of bail pending appeal.
18. Unlike bail pending trial where an accused person is presumed innocent until proven guilty, bail pending appeal is an exception rather than the norm. The Applicant has lost the Constitutional presumption of innocence and is viewed as lawfully convicted by a competent Court of law. The burden therefore shifts to the Applicant to show that there are exceptional or unusual circumstances or that the Appeal has a high likelihood of succeeding.
19. Bail pending Appeal is governed under Section 357(1) of the Criminal Procedure Code provides 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…”
19. The principles governing grant of bail pending appeal are now settled. In Jivraj Shah vs Republic [1986] eKLR, the Court held that the principal consideration is whether there exist exceptional or unusual circumstances upon which the Court can conclude that it is in the interest of justice to grant bail. The Court further held that where it appears prima facie that the appeal is likely to succeed on account of a substantial point of law, and that the sentence or a substantial part thereof will have been served before the appeal is heard, conditions for grant of bail will exist.
20. Similarly, in Mutua vs Republic [1988] KLR 497, the Court of Appeal stated:-
“It must be remembered that an applicant for bail pending appeal has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal.”
21. The Judiciary Bail and Bond Policy Guidelines further provide that the burden rests upon the Applicant to demonstrate that the Appeal has overwhelming chances of success or that exceptional circumstances exist to warrant release on bail pending appeal.
22. From the foregoing authorities, the conditions to be satisfied before bail pending appeal may be granted can be summarised as follows:-
i. Whether the Appeal has overwhelming chances of success; and
ii. Whether there exist exceptional or unusual circumstances warranting release on bail pending appeal.
23. On whether the Appeal has overwhelming chances of success, I have carefully perused the Amended Petition of Appeal and the intended grounds of appeal. While it would be prejudicial to delve into the merits of the Appeal at this interlocutory stage, I am satisfied that the Appeal is arguable.
24. On whether exceptional or unusual circumstances exist, the Applicant relied on the alleged failure by the trial court to consider his defence of alibi and the possibility that he may serve a substantial part of the sentence before the Appeal is heard.
25. In raising a defence of alibi for purposes of an application for bail pending Appeal, an Applicant must demonstrate overwhelming probability of success and must not be poorly substantiated during the trial. I have perused the record and the testimony of DW2 and note that DW2 met the Applicant at the school at 11:00am and is unable to tell the whereabouts of the Applicant between 6:15 am and 11:00am on the material day.
26. Further the teaching staff daily attendance record shows the Applicant signed in at 7:04am and left at 9:55am while the PP2 and G6 registration at the school does not indicate time of arrival. I can only presume from the evidence of DW2 that the Applicant arrived at the school at 11:00am. I also note that the photograph produced by the Applicant at trial have a time stamp for 3pm of the same day. Way after the incident had occurred.
27. It is also noteworthy that PW1 and PW2 could, vide eye witness testimony placed the Applicant at the scene of crime at about 7:50 am. The Applicants defence of alibi in his Application for bail pending appeal is shacky at best and hence does not meet the necessary threshold to consider his circumstances to be overwhelming as the Applicant is unable to account for his whereabouts between 7:04am and 7:50am when the incident happened.
28. I have further perused the lower court record. It is not disputed that there existed a history of bad blood between the Applicant and the complainant, and that there had previously been a similar complaint which was later withdrawn under Section 204 of the Criminal Procedure Code. This position was also confirmed by the Applicant’s wife during the trial.
29. I am not persuaded that the circumstances advanced by the Applicant amount to exceptional or unusual circumstances warranting his release on bail pending appeal. The Applicant is currently serving a lawful sentence following conviction by a competent court.
30. Further, the fact that the Applicant was of good behaviour and did not abscond trial during the trial is not a reason to grant bail. In the case of Dominic Karanja v Republic [1986] KLR 612 the Court of Appeal held that:
“…The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] EA 476.”
31. On the alleged delay in hearing the Appeal, I have perused the court record and note that the typed proceedings and judgment are already on record and the Appeal is ready for hearing. Consequently, the apprehension that the Appeal may not be heard expeditiously is not well founded. I am in agreement with the State that the current practice favours expeditious disposal of cases and the apprehension that the Appeal would be delayed and the Applicant would serve a substantial amount of the sentence of 10 years is therefore devoid of merit.
32. I am not persuaded, prima facie , that the Appeal has overwhelming chances of success so as to justify the grant of bail pending appeal. For avoidance of doubt, an arguable appeal is not an Appeal with overwhelming chances of success.
33. I therefore find that the Applicant has failed to demonstrate either overwhelming chances of success in the Appeal or the existence of exceptional circumstances to warrant the exercise of this Court’s discretion in his favour.
Final Orders
34. The Amended Notice of Motion dated 22 nd May 2026 lacks merit and is hereby dismissed.
35. The Applicant is however at liberty to prosecute his Appeal expeditiously.
Ruling delivered virtually on 9 th June 2026
i. Spent.
ii. That the Appellant/Applicant be admitted to bond/bail pending the hearing and determination of the Appeal.
iii. That this Honourable Court be pleased to grant such further or other orders as may be just and expedient in the circumstances.
2. The Application was brought under Section 357 of the Criminal Procedure Code and all other enabling provisions of the law. It was supported by the grounds on the face of the Application and the Supporting Affidavit sworn by Ezra Kiplang’at Chepkwony on 22nd May 2026.
3. The Respondent did not file any response to the Application on account of time constraints and the urgency of the matter. The issue however is one of a point of law and any document sought to be relied upon by either of the parties was on record. The need for a written response to the Application was therefore dispensed with.
The Applicant’s Case
3. The Applicant stated that he was charged with the offence of attempted murder contrary to Section 220(a) of the Penal Code, convicted and sentenced to serve ten (10) years imprisonment. He further stated that he lodged an Appeal before this Court vide a Petition of Appeal dated 28th April 2023 and subsequently sought to amend the same through an Amended Petition of Appeal dated 22nd May 2026.
4. The Applicant contended that the Appeal is arguable and has high chances of success as the conviction was against the weight of the evidence and the prosecution failed to prove its case beyond reasonable doubt. He further stated that the trial court disregarded his defence of alibi and improperly shifted the burden of proof to him.
5. It was further the Applicant’s case that the conviction was based on circumstantial evidence and that there was a likelihood that the Appeal would succeed. He expressed apprehension that unless released on bail pending appeal, he risked serving a substantial part of the sentence before the Appeal is heard and determined, thereby rendering the Appeal nugatory.
Applicant’s Submissions
6. Through oral submissions on 28th May 2026, the Applicant submitted that he was a person of good character and that the Respondent had not controverted the facts contained in the Application. He urged the Court to find that he had an unlimited right of appeal and that there remained a possibility that the trial court may have erred.
7. The Applicant submitted that exceptional circumstances include delays in the hearing of an appeal, unavailability or delay in preparation of proceedings, and the likelihood that a substantial part of the sentence may be served before the appeal is heard.
8. He further submitted that he complied with all bail terms issued by the trial court during the pendency of the trial. He placed reliance was placed on the case of Jivraj Shah vs Republic [1986] eKLR where the Court held that:-
“The principal consideration is if there exists exceptional or unusual circumstances upon which this Court can fairly conclude that it is in the interest of justice to grant bail. 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 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.”
10. He also submitted that delays occasioned by typing of proceedings and congestion in the typing pool would prejudice him by prolonging the hearing of the Appeal.
The Respondent’s Submissions
13. The Respondent opposed the Application through oral submissions and submitted that bail pending appeal is not a constitutional right. It was argued that the Applicant was lawfully convicted by a competent court and was therefore serving a lawful sentence.
14. The Respondent further submitted that the principal consideration in an application for bail pending appeal is the existence of exceptional o unusual circumstances warranting the exercise of the Court’s discretion in favour of the Applicant.
15. It was the Respondent’s position that the Applicant had failed to demonstrate any exceptional circumstances to justify release on bail pending appeal. The Respondent submitted that the current practice favours expeditious disposal of appeals and that in this case the Record of Appeal was ready, thereby minimising the likelihood of delay.
16. The Respondent further submitted that assertions that the Applicant is not a flight risk, has a fixed place of abode, family responsibilities, and had complied with previous bail terms are not sufficient grounds for release on bail pending appeal. It was also submitted that the Applicant’s employment status is not a relevant consideration in such an application.
Issue for Determination
17. I have considered the Application, the Supporting Affidavit, the rival submissions by Counsel and the applicable law. In my view, the sole issue for determination is:-
Whether the Applicant has satisfied the conditions for grant of bail pending appeal.
18. Unlike bail pending trial where an accused person is presumed innocent until proven guilty, bail pending appeal is an exception rather than the norm. The Applicant has lost the Constitutional presumption of innocence and is viewed as lawfully convicted by a competent Court of law. The burden therefore shifts to the Applicant to show that there are exceptional or unusual circumstances or that the Appeal has a high likelihood of succeeding.
19. Bail pending Appeal is governed under Section 357(1) of the Criminal Procedure Code provides 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…”
19. The principles governing grant of bail pending appeal are now settled. In Jivraj Shah vs Republic [1986] eKLR, the Court held that the principal consideration is whether there exist exceptional or unusual circumstances upon which the Court can conclude that it is in the interest of justice to grant bail. The Court further held that where it appears prima facie that the appeal is likely to succeed on account of a substantial point of law, and that the sentence or a substantial part thereof will have been served before the appeal is heard, conditions for grant of bail will exist.
20. Similarly, in Mutua vs Republic [1988] KLR 497, the Court of Appeal stated:-
“It must be remembered that an applicant for bail pending appeal has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal.”
21. The Judiciary Bail and Bond Policy Guidelines further provide that the burden rests upon the Applicant to demonstrate that the Appeal has overwhelming chances of success or that exceptional circumstances exist to warrant release on bail pending appeal.
22. From the foregoing authorities, the conditions to be satisfied before bail pending appeal may be granted can be summarised as follows:-
i. Whether the Appeal has overwhelming chances of success; and
ii. Whether there exist exceptional or unusual circumstances warranting release on bail pending appeal.
23. On whether the Appeal has overwhelming chances of success, I have carefully perused the Amended Petition of Appeal and the intended grounds of appeal. While it would be prejudicial to delve into the merits of the Appeal at this interlocutory stage, I am satisfied that the Appeal is arguable.
24. On whether exceptional or unusual circumstances exist, the Applicant relied on the alleged failure by the trial court to consider his defence of alibi and the possibility that he may serve a substantial part of the sentence before the Appeal is heard.
25. In raising a defence of alibi for purposes of an application for bail pending Appeal, an Applicant must demonstrate overwhelming probability of success and must not be poorly substantiated during the trial. I have perused the record and the testimony of DW2 and note that DW2 met the Applicant at the school at 11:00am and is unable to tell the whereabouts of the Applicant between 6:15 am and 11:00am on the material day.
26. Further the teaching staff daily attendance record shows the Applicant signed in at 7:04am and left at 9:55am while the PP2 and G6 registration at the school does not indicate time of arrival. I can only presume from the evidence of DW2 that the Applicant arrived at the school at 11:00am. I also note that the photograph produced by the Applicant at trial have a time stamp for 3pm of the same day. Way after the incident had occurred.
27. It is also noteworthy that PW1 and PW2 could, vide eye witness testimony placed the Applicant at the scene of crime at about 7:50 am. The Applicants defence of alibi in his Application for bail pending appeal is shacky at best and hence does not meet the necessary threshold to consider his circumstances to be overwhelming as the Applicant is unable to account for his whereabouts between 7:04am and 7:50am when the incident happened.
28. I have further perused the lower court record. It is not disputed that there existed a history of bad blood between the Applicant and the complainant, and that there had previously been a similar complaint which was later withdrawn under Section 204 of the Criminal Procedure Code. This position was also confirmed by the Applicant’s wife during the trial.
29. I am not persuaded that the circumstances advanced by the Applicant amount to exceptional or unusual circumstances warranting his release on bail pending appeal. The Applicant is currently serving a lawful sentence following conviction by a competent court.
30. Further, the fact that the Applicant was of good behaviour and did not abscond trial during the trial is not a reason to grant bail. In the case of Dominic Karanja v Republic [1986] KLR 612 the Court of Appeal held that:
“…The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] EA 476.”
31. On the alleged delay in hearing the Appeal, I have perused the court record and note that the typed proceedings and judgment are already on record and the Appeal is ready for hearing. Consequently, the apprehension that the Appeal may not be heard expeditiously is not well founded. I am in agreement with the State that the current practice favours expeditious disposal of cases and the apprehension that the Appeal would be delayed and the Applicant would serve a substantial amount of the sentence of 10 years is therefore devoid of merit.
32. I am not persuaded, prima facie , that the Appeal has overwhelming chances of success so as to justify the grant of bail pending appeal. For avoidance of doubt, an arguable appeal is not an Appeal with overwhelming chances of success.
33. I therefore find that the Applicant has failed to demonstrate either overwhelming chances of success in the Appeal or the existence of exceptional circumstances to warrant the exercise of this Court’s discretion in his favour.
Final Orders
34. The Amended Notice of Motion dated 22 nd May 2026 lacks merit and is hereby dismissed.
35. The Applicant is however at liberty to prosecute his Appeal expeditiously.
Ruling delivered virtually on 9 th June 2026