A. INTRODUCTION & BACKGROUND
1. The Applicants approached this Court by way of a Notice of Motion dated 8th June 2026, brought under the provisions of Section 357 of the Criminal Procedure Code (Cap 75 Laws of Kenya) and Article 50 of the Constitution of Kenya.
2. The Applicants seek orders to be released on bail/bond pending the hearing and determination of their main appeal against both conviction and sentence in Malindi Criminal Case No. 1 of 2019, wherein they were convicted on 17 th April 2026 and sentenced on 26th May 2026.
3. The Appellants/Applicants herein were charged with 40 counts of diverse offences under the Anti-Corruption and Economic Crimes Act and the Proceeds of Crime and Anti-Money Laundering Act in Malindi Criminal Case No. 1 of 2019, wherein they were convicted on 17 th April 2026 and sentenced on 26 th May 2026 in charges of fraudulent acquisition of public property contrary to section 45(1)(a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act, uttering a false document contrary to section 33 of the Penal Code, Acquisition of proceeds of crime contrary to section 4 as read with section 16(1)(a) of the proceeds of Crime and Anti-Money Laundering Act. They have appealed against both the conviction and sentence.
B. SUBMISSION BY PARTIES
Appellants/Applicants’ Case
4. In support of the application, the Applicants filed written submissions dated 25 th June, 2026.
5. The Applicants argue that they have an arguable appeal with overwhelming chances of success. They contend that the learned trial magistrate erred in law and fact by failing to properly evaluate the defence evidence tendered at trial.
6. The Applicants further submit that they have a demonstrated record of compliance, having impeccably attended the trial court throughout the lower court proceedings without default. They argue that they are not flight risks and are willing to abide by any reasonable conditions imposed by this Court to ensure their attendance during the appellate process.
7. Further, regarding the individual criminal liability of the 1 st Appellant and the overall conviction, the submissions invoke Section 23 of the Penal Code. The Applicants contend that the trial court failed to distinguish between the liability of the 2 nd Appellant corporation and the personal liability of the 1 st Appellant, who was a director.
8. They argue that the prosecution failed to prove, beyond reasonable doubt, the specific acts and mens rea of the 1 st Appellant as required by law, as liability for directors is derivative and requires proof of consent, connivance, approval, or neglect.
9. The Applicants emphasized that the trial court's judgment proceeded on the erroneous premise that liability attaching to the 2nd Appellant company could automatically be transferred to the 1st Appellant, failing to appreciate the doctrine of separate legal personality as established in Salomon vs a. Salomon & Co. LTD (1897) AC 22.
10. Additionally, the Appellants challenged the competency of the plea purportedly entered on behalf of the 2 nd Appellant, noting that the trial court record fails to show whether the 1 st Appellant had the requisite board resolution or lawful instrument authorizing him to appear and plead on behalf of the company.
11. In their Petition of Appeal, the Appellants sets out their case as follows;
(a) That the trial Magistrate relied on inadequate, uncorroborated evidence, failed to properly analyze the evidence on record, and made inferences to fill gaps in the prosecution's case.
(b) They specifically contend that the evidence for counts 26, 27, and 36 was incompatible with the charges and that the lining and process of lining witnesses undermined their right to a fair trial. Finally, the Appellants argue that the Magistrate erred by lumping 40 counts into a single charge sheet, which prejudiced their defense and violated established principles of criminal procedure and practice.
The Respondent’s Case
12. The Respondent, its Grounds of Opposition dated 15 th June 2026 contend that the application is incompetent, misconceived, and an outright abuse of the process of this Honourable Court.
13. The Respondent’s opposition is anchored on the following core submissions:
Absence of Exceptional Circumstances:
14. The Applicants have failed to demonstrate the existence of any exceptional or unusual circumstances that would warrant a grant of bail pending appeal.
Lack of Prima Facie Merit:
15. The grounds raised in the appeal are described as general, highly contested, and requiring full interrogation during the main hearing of the appeal. They do not disclose any prima facie merit. Consequently, the Applicants have failed to show that the appeal has overwhelming chances of success, which remains the primary consideration in applications for bail pending appeal.
High Risk of Absconding:
16. Following their lawful conviction and sentencing by a competent court, the conviction remains valid until set aside on appeal, meaning the presumption of innocence no longer applies. Given that the 1st Appellant was sentenced to a severe custodial sentence of eight (8) years and a total fine of Kshs. 34,763,640, the Respondent submits that this severe penalty presents a strong incentive for the Appellant/Applicant to fail to attend court.
17. The Respondent added that the mere allegation of the Appellants' impeccable attendance in the trial court, or their previous compliance with bond terms during trial, does not of itself justify a grant of bail pending appeal after conviction.
No Risk of Sentence Invalidation:
18. No evidence has been tendered by the Applicants to demonstrate that the appeal will not be heard within a reasonable time, or that a substantial portion of the 8-year sentence will be served before its determination.
Lawfulness and Proportion of Sentence :
19. Respondent maintains that the sentence imposed by the trial court is entirely lawful and proportionate to the offense, and it does not warrant any interference at this stage.
No Violation of Constitutional Rights:
20. The Appellant/Applicant has not demonstrated any violation of his constitutional rights to justify the issuance of the orders sought.
Interests of Justice:
21. Ultimately, the Respondent submitted that the overall interests of justice do not favor the release of the Appellant/Applicant at this stage, as the application fundamentally lacks merit and ought to be dismissed.
C. ISSUES FOR DETERMINATION
22. The principles governing the grant of bail pending appeal are well-settled in Kenyan jurisprudence. Unlike bail pending trial where the right to liberty is safeguarded by the presumption of innocence under Article 49 of the Constitution, the structural paradigm shifts entirely upon conviction.
23. In the case of Jivraj Shah -vs- Republic [1980] KLR 605, the Court of Appeal set out the parameters to be considered by an appellate court in applications for bail pending appeal as follows: -
(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.
(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.
24. As established in the locus classicus Jivaji v. Republic [1972] EA 28 and later reinforced in Somi v. Republic [2006] 1 KLR , the Applicant must demonstrate either:
(a) That the appeal has overwhelming prospects of success, or
(b) That there exist exceptional or unusual circumstances, such as a high probability that the sentence will be substantially served before the appeal can be heard.
25. Having considered the Notice of Motion, the Grounds of Opposition, and the respective arguments, this Court filters the dispute into two distinct issues for determination:
i) Whether the main appeal discloses overwhelming chances of success.
ii) Whether the Applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
D. LEGAL ANALYSIS
(i) Whether the main appeal discloses overwhelming chances of success.
26. The Appellants/Applicants’ appeal is premised on the following grounds, inter alia ;
(a) THAT the Honorable Magistrate erred in law and fact by failing to appreciate that the evidence tendered by the prosecution was inadequate, devoid of probative value, shambolic, deficient, lacking in cogency and incapable of deriving a conviction and sentence meted on the appellants jointly and severally.
(b) THAT the Honorable Magistrate erred in law and fact in the entirety of the proceedings by failing to invoke and avail to the appellants fundamental rights to fair trial as contemplated and underpinned in Article 50(2) and Article 25 (c) of the Constitution of Kenya, 2010 thereby occasioned a travesty of justice.
(c) THAT the learned Magistrate erred in law and fact in convicting and sentencing the appellants herein notwithstanding that the evidence tendered by the Prosecution Witnesses pointed to the innocence rather than the guilty of the appellants herein.
(d) THAT the learned Magistrate relied on inadequate and uncorroborated prosecution evidence leading to a conviction disregarding apparent failure on the part of the prosecution to proof the charges beyond reasonable doubt as contemplated in the Law.
(e) THAT the learned Magistrate erred in Law in failing to appreciate, analyze the evidence tendered against the appellants and thereby reached an erroneous finding of guilty yet the weight of evidence tendered leaned in favour of exoneration of the appellants.
(f) THAT the learned the Magistrate erred in law in his judgment by making inferences which amounted to actual or an effort/act to fill gaps and inadequacies displayed in the prosecution case.
(g) THAT the learned Magistrate erred in law and fact by failing to appreciate that the evidence tendered in court by the prosecution witnesses was incapable of sustaining any of the charges or counts presented against the appellants herein.
(h) THAT the evidence tendered with regard to count 26,27 and 36 by the prosecution is incompatible with the particulars of the charges rendering the conviction erroneous, unmaintainable and incompatible with the benefit of doubt which presented in favor of the appellants.
(i) THAT the Learned Magistrate failed to analyze and evaluate the evidence on record was inadequate, uncollaborated farfetched, disjointed and incompatible with the particulars of the charge sheet and thus incapable of sustaining a conviction and sentence meted on the appellants.
(j) THAT the learned Magistrate erred in law by failing to appreciate that the evidence tendered by the prosecution witnesses singly and collectively failed to bring out the basic
(k) elements of the charge preferred in both Actus reus and Mens Rea and hence failed to deliver on the threshold of proof beyond reasonable doubt rendering the conviction and sentence erroneous.
(l) THAT the Learned Magistrate erred in law and fact by failing to appreciate that the lining and the process of lining the witnesses undermined fair trial with the effect of diminishing and or hampering fair process thereby leading to unjustified conviction and sentencing of the appellants.
(m) THAT the Learned Magistrate erred in law by failing to safeguard the Appellant against prejudice arising from incorporation and or lumping the of 40 counts in a single charge sheet, contrary to established principles of criminal procedure and practice which discourage joinder of numerous counts in one charge sheet and thereby rendered the process unfair and the conviction and sentence erroneous .
27. On the issue of overwhelming prospects of success, a casual glance at the grounds of appeal on record reveals that they target the trial court’s factual assessment and statutory evaluation. While these issues are undoubtedly arguable, they are highly contested by the Respondent and require a full, painstaking analysis of the lower court record.
28. A person seeking bail pending appeal is no longer an accused person. The constitutional presumption of innocence has been spent. The Appellant/Applicant stands before this Court as a convict whose guilt has been firmly established beyond a reasonable doubt.
29. Consequently, the execution of a lawful custodial sentence cannot be casually interfered with. As held in Jivraj Shah v Republic [1986] KLR 605, bail pending appeal can only be granted under exceptional and unusual circumstances.
30. The centerpiece of the Applicant’s argument is that the trial court misapplied Section 23 of the Penal Code, thereby giving the appeal an overwhelming chance of success. This Court has conducted a prima facie evaluation of that argument and finds it entirely unconvincing. Section 23 creates a strict, mandatory statutory presumption. Once it is proven that a corporate entity has committed an offence, the law shifts the legal burden of proof directly to the directors and managers controlling its affairs.
31. Section 23 of the Penal Code provides that:
“Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.”
32. The provision effectively flips the burden of proof, deeming the controlling officers liable unless they actively discharge their legal duty to prove the contrary.
33. The Applicant argues that they were a passive director who lacked operational control, and that they took reasonable steps to prevent the crime. However, these are purely questions of fact.
34. The learned trial magistrate carefully evaluated the company's organizational structure, the corporate filings, and the evidence on record. The trial court made a factual finding that the Applicant did exercise management over the corporate affairs and failed to establish the statutory defense.
35. At this interlocutory stage, this Court cannot prematurely try the main appeal. An arguable appeal is not synonymous with one possessing overwhelming chances of success.
36. Furthermore, the sentence imposed is substantial, meaning there is absolutely no risk of the appeal being rendered nugatory or academic by the time it is heard.
(ii) Whether the Applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
37. In the recent decision of Waititu Babayao v Republic (Anti-Corruption and Economic Crimes Appeal E006 of 2025) [2025] KEHC 5678 (KLR), a conviction strips an individual of the constitutional shield found under Article 50(2)(a) of the Constitution of Kenya, 2010, meaning the presumption of innocence is entirely spent.
38. The 1 st Applicant faces a severe, definitive custodial term of eight (8) years alongside an immense, conjoined financial penalty of Kshs. 34,763,640.
39. Counsel for the Respondent submitted that the grim reality of a severe custodial sentence fundamentally shifts an applicant’s psychological calculus regarding compliance with the law. I say no more.
40. This Court concludes that the severe penalty imposed here acts as an objective, self-evident incentive to abscond, transforming what was once a compliant accused person into a profound flight risk. Consequently, the overarching focus shifts strictly toward the public interest in ensuring the execution of a lawful sentence.
41. Further, while this Court commends the 1 st Applicant’s previous discipline and meticulous compliance with bond terms during the trial phase, it remains settled law that post-conviction bail cannot be granted as reward for past compliance.
42. The long established threshold set out by the Court of Appeal in the foundational case of Juma v Republic (2003) KLR, explicitly dictates that bail pending appeal is an exceptional, sparing remedy. It strictly demands the demonstration of substantial, unusual, or exceptional circumstances, rather than a mere continuation of pre-trial good behaviour.
43. Further, the severe term of eight (8) years creates an overwhelming, structural incentive to flee from the seat of justice, completely overriding any past compliance records. As observed across consistent jurisprudence and illustrated by the strict conditions litigated in the Waititu (supra) the combination of an extended jail term and multimillion shilling financial penalties creates an unbearable economic and physical burden on a convict.
44. This reality destroys any reasonable expectation that the applicant will willingly submit to custody if their appeal fails. Good conduct during trial cannot thus mitigate or erase this newly engineered, objective flight risk.
E. CONCLUSION & DISPOSITION
45. In view of the foregoing, the onus is always on the Appellant to demonstrate to the court that there are good reasons why he should be allowed to enjoy his liberty pending the hearing and determination of his appeal.
46. For the foregoing reasons, I have come to the conclusion that the Appellants have not demonstrated that there exist circumstances that would warrant this court to grant them bail pending appeal.
47. The Notice of Motion dated 08.06.2026 is therefore unmerited and it is accordingly dismissed.
48. To prevent any prejudice arising from delayed justice, the main appeal is hereby be set down for a mention on 20/07/2026 to secure directions for an expedited hearing.
It is so ordered.
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1. The Applicants approached this Court by way of a Notice of Motion dated 8th June 2026, brought under the provisions of Section 357 of the Criminal Procedure Code (Cap 75 Laws of Kenya) and Article 50 of the Constitution of Kenya.
2. The Applicants seek orders to be released on bail/bond pending the hearing and determination of their main appeal against both conviction and sentence in Malindi Criminal Case No. 1 of 2019, wherein they were convicted on 17 th April 2026 and sentenced on 26th May 2026.
3. The Appellants/Applicants herein were charged with 40 counts of diverse offences under the Anti-Corruption and Economic Crimes Act and the Proceeds of Crime and Anti-Money Laundering Act in Malindi Criminal Case No. 1 of 2019, wherein they were convicted on 17 th April 2026 and sentenced on 26 th May 2026 in charges of fraudulent acquisition of public property contrary to section 45(1)(a) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act, uttering a false document contrary to section 33 of the Penal Code, Acquisition of proceeds of crime contrary to section 4 as read with section 16(1)(a) of the proceeds of Crime and Anti-Money Laundering Act. They have appealed against both the conviction and sentence.
B. SUBMISSION BY PARTIES
Appellants/Applicants’ Case
4. In support of the application, the Applicants filed written submissions dated 25 th June, 2026.
5. The Applicants argue that they have an arguable appeal with overwhelming chances of success. They contend that the learned trial magistrate erred in law and fact by failing to properly evaluate the defence evidence tendered at trial.
6. The Applicants further submit that they have a demonstrated record of compliance, having impeccably attended the trial court throughout the lower court proceedings without default. They argue that they are not flight risks and are willing to abide by any reasonable conditions imposed by this Court to ensure their attendance during the appellate process.
7. Further, regarding the individual criminal liability of the 1 st Appellant and the overall conviction, the submissions invoke Section 23 of the Penal Code. The Applicants contend that the trial court failed to distinguish between the liability of the 2 nd Appellant corporation and the personal liability of the 1 st Appellant, who was a director.
8. They argue that the prosecution failed to prove, beyond reasonable doubt, the specific acts and mens rea of the 1 st Appellant as required by law, as liability for directors is derivative and requires proof of consent, connivance, approval, or neglect.
9. The Applicants emphasized that the trial court's judgment proceeded on the erroneous premise that liability attaching to the 2nd Appellant company could automatically be transferred to the 1st Appellant, failing to appreciate the doctrine of separate legal personality as established in Salomon vs a. Salomon & Co. LTD (1897) AC 22.
10. Additionally, the Appellants challenged the competency of the plea purportedly entered on behalf of the 2 nd Appellant, noting that the trial court record fails to show whether the 1 st Appellant had the requisite board resolution or lawful instrument authorizing him to appear and plead on behalf of the company.
11. In their Petition of Appeal, the Appellants sets out their case as follows;
(a) That the trial Magistrate relied on inadequate, uncorroborated evidence, failed to properly analyze the evidence on record, and made inferences to fill gaps in the prosecution's case.
(b) They specifically contend that the evidence for counts 26, 27, and 36 was incompatible with the charges and that the lining and process of lining witnesses undermined their right to a fair trial. Finally, the Appellants argue that the Magistrate erred by lumping 40 counts into a single charge sheet, which prejudiced their defense and violated established principles of criminal procedure and practice.
The Respondent’s Case
12. The Respondent, its Grounds of Opposition dated 15 th June 2026 contend that the application is incompetent, misconceived, and an outright abuse of the process of this Honourable Court.
13. The Respondent’s opposition is anchored on the following core submissions:
Absence of Exceptional Circumstances:
14. The Applicants have failed to demonstrate the existence of any exceptional or unusual circumstances that would warrant a grant of bail pending appeal.
Lack of Prima Facie Merit:
15. The grounds raised in the appeal are described as general, highly contested, and requiring full interrogation during the main hearing of the appeal. They do not disclose any prima facie merit. Consequently, the Applicants have failed to show that the appeal has overwhelming chances of success, which remains the primary consideration in applications for bail pending appeal.
High Risk of Absconding:
16. Following their lawful conviction and sentencing by a competent court, the conviction remains valid until set aside on appeal, meaning the presumption of innocence no longer applies. Given that the 1st Appellant was sentenced to a severe custodial sentence of eight (8) years and a total fine of Kshs. 34,763,640, the Respondent submits that this severe penalty presents a strong incentive for the Appellant/Applicant to fail to attend court.
17. The Respondent added that the mere allegation of the Appellants' impeccable attendance in the trial court, or their previous compliance with bond terms during trial, does not of itself justify a grant of bail pending appeal after conviction.
No Risk of Sentence Invalidation:
18. No evidence has been tendered by the Applicants to demonstrate that the appeal will not be heard within a reasonable time, or that a substantial portion of the 8-year sentence will be served before its determination.
Lawfulness and Proportion of Sentence :
19. Respondent maintains that the sentence imposed by the trial court is entirely lawful and proportionate to the offense, and it does not warrant any interference at this stage.
No Violation of Constitutional Rights:
20. The Appellant/Applicant has not demonstrated any violation of his constitutional rights to justify the issuance of the orders sought.
Interests of Justice:
21. Ultimately, the Respondent submitted that the overall interests of justice do not favor the release of the Appellant/Applicant at this stage, as the application fundamentally lacks merit and ought to be dismissed.
C. ISSUES FOR DETERMINATION
22. The principles governing the grant of bail pending appeal are well-settled in Kenyan jurisprudence. Unlike bail pending trial where the right to liberty is safeguarded by the presumption of innocence under Article 49 of the Constitution, the structural paradigm shifts entirely upon conviction.
23. In the case of Jivraj Shah -vs- Republic [1980] KLR 605, the Court of Appeal set out the parameters to be considered by an appellate court in applications for bail pending appeal as follows: -
(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.
(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.
24. As established in the locus classicus Jivaji v. Republic [1972] EA 28 and later reinforced in Somi v. Republic [2006] 1 KLR , the Applicant must demonstrate either:
(a) That the appeal has overwhelming prospects of success, or
(b) That there exist exceptional or unusual circumstances, such as a high probability that the sentence will be substantially served before the appeal can be heard.
25. Having considered the Notice of Motion, the Grounds of Opposition, and the respective arguments, this Court filters the dispute into two distinct issues for determination:
i) Whether the main appeal discloses overwhelming chances of success.
ii) Whether the Applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
D. LEGAL ANALYSIS
(i) Whether the main appeal discloses overwhelming chances of success.
26. The Appellants/Applicants’ appeal is premised on the following grounds, inter alia ;
(a) THAT the Honorable Magistrate erred in law and fact by failing to appreciate that the evidence tendered by the prosecution was inadequate, devoid of probative value, shambolic, deficient, lacking in cogency and incapable of deriving a conviction and sentence meted on the appellants jointly and severally.
(b) THAT the Honorable Magistrate erred in law and fact in the entirety of the proceedings by failing to invoke and avail to the appellants fundamental rights to fair trial as contemplated and underpinned in Article 50(2) and Article 25 (c) of the Constitution of Kenya, 2010 thereby occasioned a travesty of justice.
(c) THAT the learned Magistrate erred in law and fact in convicting and sentencing the appellants herein notwithstanding that the evidence tendered by the Prosecution Witnesses pointed to the innocence rather than the guilty of the appellants herein.
(d) THAT the learned Magistrate relied on inadequate and uncorroborated prosecution evidence leading to a conviction disregarding apparent failure on the part of the prosecution to proof the charges beyond reasonable doubt as contemplated in the Law.
(e) THAT the learned Magistrate erred in Law in failing to appreciate, analyze the evidence tendered against the appellants and thereby reached an erroneous finding of guilty yet the weight of evidence tendered leaned in favour of exoneration of the appellants.
(f) THAT the learned the Magistrate erred in law in his judgment by making inferences which amounted to actual or an effort/act to fill gaps and inadequacies displayed in the prosecution case.
(g) THAT the learned Magistrate erred in law and fact by failing to appreciate that the evidence tendered in court by the prosecution witnesses was incapable of sustaining any of the charges or counts presented against the appellants herein.
(h) THAT the evidence tendered with regard to count 26,27 and 36 by the prosecution is incompatible with the particulars of the charges rendering the conviction erroneous, unmaintainable and incompatible with the benefit of doubt which presented in favor of the appellants.
(i) THAT the Learned Magistrate failed to analyze and evaluate the evidence on record was inadequate, uncollaborated farfetched, disjointed and incompatible with the particulars of the charge sheet and thus incapable of sustaining a conviction and sentence meted on the appellants.
(j) THAT the learned Magistrate erred in law by failing to appreciate that the evidence tendered by the prosecution witnesses singly and collectively failed to bring out the basic
(k) elements of the charge preferred in both Actus reus and Mens Rea and hence failed to deliver on the threshold of proof beyond reasonable doubt rendering the conviction and sentence erroneous.
(l) THAT the Learned Magistrate erred in law and fact by failing to appreciate that the lining and the process of lining the witnesses undermined fair trial with the effect of diminishing and or hampering fair process thereby leading to unjustified conviction and sentencing of the appellants.
(m) THAT the Learned Magistrate erred in law by failing to safeguard the Appellant against prejudice arising from incorporation and or lumping the of 40 counts in a single charge sheet, contrary to established principles of criminal procedure and practice which discourage joinder of numerous counts in one charge sheet and thereby rendered the process unfair and the conviction and sentence erroneous .
27. On the issue of overwhelming prospects of success, a casual glance at the grounds of appeal on record reveals that they target the trial court’s factual assessment and statutory evaluation. While these issues are undoubtedly arguable, they are highly contested by the Respondent and require a full, painstaking analysis of the lower court record.
28. A person seeking bail pending appeal is no longer an accused person. The constitutional presumption of innocence has been spent. The Appellant/Applicant stands before this Court as a convict whose guilt has been firmly established beyond a reasonable doubt.
29. Consequently, the execution of a lawful custodial sentence cannot be casually interfered with. As held in Jivraj Shah v Republic [1986] KLR 605, bail pending appeal can only be granted under exceptional and unusual circumstances.
30. The centerpiece of the Applicant’s argument is that the trial court misapplied Section 23 of the Penal Code, thereby giving the appeal an overwhelming chance of success. This Court has conducted a prima facie evaluation of that argument and finds it entirely unconvincing. Section 23 creates a strict, mandatory statutory presumption. Once it is proven that a corporate entity has committed an offence, the law shifts the legal burden of proof directly to the directors and managers controlling its affairs.
31. Section 23 of the Penal Code provides that:
“Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.”
32. The provision effectively flips the burden of proof, deeming the controlling officers liable unless they actively discharge their legal duty to prove the contrary.
33. The Applicant argues that they were a passive director who lacked operational control, and that they took reasonable steps to prevent the crime. However, these are purely questions of fact.
34. The learned trial magistrate carefully evaluated the company's organizational structure, the corporate filings, and the evidence on record. The trial court made a factual finding that the Applicant did exercise management over the corporate affairs and failed to establish the statutory defense.
35. At this interlocutory stage, this Court cannot prematurely try the main appeal. An arguable appeal is not synonymous with one possessing overwhelming chances of success.
36. Furthermore, the sentence imposed is substantial, meaning there is absolutely no risk of the appeal being rendered nugatory or academic by the time it is heard.
(ii) Whether the Applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
37. In the recent decision of Waititu Babayao v Republic (Anti-Corruption and Economic Crimes Appeal E006 of 2025) [2025] KEHC 5678 (KLR), a conviction strips an individual of the constitutional shield found under Article 50(2)(a) of the Constitution of Kenya, 2010, meaning the presumption of innocence is entirely spent.
38. The 1 st Applicant faces a severe, definitive custodial term of eight (8) years alongside an immense, conjoined financial penalty of Kshs. 34,763,640.
39. Counsel for the Respondent submitted that the grim reality of a severe custodial sentence fundamentally shifts an applicant’s psychological calculus regarding compliance with the law. I say no more.
40. This Court concludes that the severe penalty imposed here acts as an objective, self-evident incentive to abscond, transforming what was once a compliant accused person into a profound flight risk. Consequently, the overarching focus shifts strictly toward the public interest in ensuring the execution of a lawful sentence.
41. Further, while this Court commends the 1 st Applicant’s previous discipline and meticulous compliance with bond terms during the trial phase, it remains settled law that post-conviction bail cannot be granted as reward for past compliance.
42. The long established threshold set out by the Court of Appeal in the foundational case of Juma v Republic (2003) KLR, explicitly dictates that bail pending appeal is an exceptional, sparing remedy. It strictly demands the demonstration of substantial, unusual, or exceptional circumstances, rather than a mere continuation of pre-trial good behaviour.
43. Further, the severe term of eight (8) years creates an overwhelming, structural incentive to flee from the seat of justice, completely overriding any past compliance records. As observed across consistent jurisprudence and illustrated by the strict conditions litigated in the Waititu (supra) the combination of an extended jail term and multimillion shilling financial penalties creates an unbearable economic and physical burden on a convict.
44. This reality destroys any reasonable expectation that the applicant will willingly submit to custody if their appeal fails. Good conduct during trial cannot thus mitigate or erase this newly engineered, objective flight risk.
E. CONCLUSION & DISPOSITION
45. In view of the foregoing, the onus is always on the Appellant to demonstrate to the court that there are good reasons why he should be allowed to enjoy his liberty pending the hearing and determination of his appeal.
46. For the foregoing reasons, I have come to the conclusion that the Appellants have not demonstrated that there exist circumstances that would warrant this court to grant them bail pending appeal.
47. The Notice of Motion dated 08.06.2026 is therefore unmerited and it is accordingly dismissed.
48. To prevent any prejudice arising from delayed justice, the main appeal is hereby be set down for a mention on 20/07/2026 to secure directions for an expedited hearing.
It is so ordered.
Page 2 of 2