ZIPPORAH KINYA BURUGU………..…………….…………APPLICANT
VERSUS
REPUBLIC………………………...…………………….………RESPONDENT
RULING
1. The Applicant was charged with the offence of sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act No.3 of 2006; The particulars of the offence are that on 7/02/2019 at (name withheld) within Nairobi County the Applicant unlawfully used a stick to penetrate the anus of HN a child aged 3½ years; the Applicant faced an alternative charge of committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006; on the 22/07/2025 she was convicted and sentenced on 29/07/2025 to Ten (10) years imprisonment; being aggrieved by the decision she filed the instant appeal against the conviction and sentence.
2. The application before this court is premised under the provisions of Section 356(1) of the Criminal Procedure Code; the Applicant seeks to be admitted to bail pending the hearing of her appeal; the application is supported by an affidavit made by ZIPPORAH KINYA BURUGU and the submissions made by her counsel.
APPLICANTS SUBMISSIONS
3. Counsel submitted that unlike bail pending trial, bail pending appeal is not a constitutional right; bail pending appeal is anchored on several principles and guidelines formulated by the Courts over the years; The first principle being the existence of exceptional or unusual circumstances upon which the appellate Court can fairly conclude that it would be in the best interest of justice to grant bail; secondly if it appears prima facie from the totality of the circumstances that the appeal has a high likelihood of success; and thirdly that a substantial part of the sentence will have been served by the time the appeal is heard and determined. The main criteria is the appeal is arguable and has overwhelming chances of success and the onus lies upon the Applicant to demonstrate that the likelihood of success or prejudice from serving of the sentence.
4. Counsel submitted that the appeal was not frivolous and had overwhelming chances of success on the grounds that the trial court did not take into consideration the substantial legal and factual issues; The trial court misdirected itself when it found that the minor knew the Applicant because his parent was well known to the Applicant; The evidence on record was that the Applicant was a senior teacher handling Grade 1 whereas the minor was in a playgroup; The Applicant did not handle the minor directly nor was he in her class; the minor named three of his teachers and was clear that he did not know the Applicant. The trial court misdirected itself on the evidence of access and proximity and on identification and on these grounds the conviction is not likely to be sustained.
5. His prayer was for the Applicant to be admitted to bail pending her appeal being heard and determined; and the terms be as the same as in the lower court. The Applicant was not a flight risk and if granted bail pending appeal she would adhere to the terms as directed by the Honourable Court; all through her trial she had duly adhered to the terms of her bail conditions even at the date of judgment when she was convicted and sentenced;
RESPONDENTS SUBMISSIONS
6. Prosecuting Counsel for the State Mr. Gacharia opposed the application; Bail pending appeal was not an absolute right like for an accused person. The admission to bail pending appeal is purely discretional to the Court; The Court of Appeal has set the standard to be met for the Court to exercise its discretion in admitting the Applicant to bail pending appeal; case law referred to JIVRAJ SHAH vs REPUBLIC- 1976 the main criteria was the existence of overwhelming chances of success of the appeal; the circumstances must disclose the merit of the appeal;
7. In the case of CHARLES RATEMO MATUMO vs REPUBLIC it was held that the mere fact that Appellant believes that the appeal has high chances of success does not constitute exceptional circumstances; it must go beyond belief; Reference was also made to the case of MUTUA vs REPUBLIC where it was held that good character as a presumption of innocence was not exceptional circumstance for this Court to exercise its discretion.
8. The conviction was by a properly constituted court which heard all the evidence tendered before it and she was undergoing punishment because of that conviction and the sentence imposed was fair; the fact that the Applicant may serve a substantial part of the sentence does not also constitute exceptional circumstances to invite discretion;
9. The Respondent prayed that the application be dismissed.
ISSUES FOR DETERMINATION
10. After hearing the respective submissions this Court has framed the following issue for determination;
(i) Whether the Applicant be admitted to bail pending appeal;
ANALYSIS
11. The facts of the case are that the Applicant was tried and convicted before the Kiambu Chiefs Magistrate Case No.E11 of 2019 for the offence of Sexual Assault; she was convicted and given a sentence of Ten (10) years imprisonment; being dissatisfied with this decision she filed the instant appeal and this application for bail pending appeal;
12. Unlike bail pending trial which is a right, the order sought by the Applicant is discretionary; therefore it is for this court to determine whether the application before it is a suitable case for it to exercise its discretion in favour of the Applicant; the key principles for consideration were set out in the case of JIVRAJ SHAH VS REPUBLIC (1986) KLR 605; these being whether the appeal has high chances of success; the existence of exceptional circumstances and the possibility of delay in determining of the appeal leading to the Applicant having served a substantial part of the sentence;
13. It was submitted that the Applicant raised the defence of identification by the minor and proximity to the minor; The Applicant contends that the trial court disregarded this line of defence and failed to evaluate these facts against the totality of the evidence on record and in particular the Applicant’s account of what transpired on that material date.
14. It is this courts considered view that this contention is on a substantial point of law which could result in the appeal being allowed; The above consideration is one of the principles upon which a court may grant bail pending appeal and is cited in the case of JIVRAJ SHAH vs REPUBLIC [1986] (supra) where it was held as follows;
“ if it appears prima facie from the totality the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist”.
15. This Court will not belabor itself in addressing the other issues raised by Counsel for the Appellant in his submissions as it is satisfied by the afore-going reasons that this is a suitable case for this Court to exercise of its discretion in favour of the Applicant.
FINDINGS AND DETERMINATION
16. The application is found to be meritorious and it is hereby allowed.
17. The Applicant may be released on bond in the sum of Kshs.500,000/- pending the hearing of her appeal together with one surety of like amount and one contact person.
18. The Record of Appeal be filed and served within Thirty (30) days hereof;
19. Mention on 2/03/2026 before the Deputy Registrar for compliance.
Orders Accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 19 TH DAY OF DECEMBER, 2025.
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Gacharia – for the State
Njehu – for the Applicant
Appellant/Applicant – present
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VERSUS
REPUBLIC………………………...…………………….………RESPONDENT
RULING
1. The Applicant was charged with the offence of sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act No.3 of 2006; The particulars of the offence are that on 7/02/2019 at (name withheld) within Nairobi County the Applicant unlawfully used a stick to penetrate the anus of HN a child aged 3½ years; the Applicant faced an alternative charge of committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act No.3 of 2006; on the 22/07/2025 she was convicted and sentenced on 29/07/2025 to Ten (10) years imprisonment; being aggrieved by the decision she filed the instant appeal against the conviction and sentence.
2. The application before this court is premised under the provisions of Section 356(1) of the Criminal Procedure Code; the Applicant seeks to be admitted to bail pending the hearing of her appeal; the application is supported by an affidavit made by ZIPPORAH KINYA BURUGU and the submissions made by her counsel.
APPLICANTS SUBMISSIONS
3. Counsel submitted that unlike bail pending trial, bail pending appeal is not a constitutional right; bail pending appeal is anchored on several principles and guidelines formulated by the Courts over the years; The first principle being the existence of exceptional or unusual circumstances upon which the appellate Court can fairly conclude that it would be in the best interest of justice to grant bail; secondly if it appears prima facie from the totality of the circumstances that the appeal has a high likelihood of success; and thirdly that a substantial part of the sentence will have been served by the time the appeal is heard and determined. The main criteria is the appeal is arguable and has overwhelming chances of success and the onus lies upon the Applicant to demonstrate that the likelihood of success or prejudice from serving of the sentence.
4. Counsel submitted that the appeal was not frivolous and had overwhelming chances of success on the grounds that the trial court did not take into consideration the substantial legal and factual issues; The trial court misdirected itself when it found that the minor knew the Applicant because his parent was well known to the Applicant; The evidence on record was that the Applicant was a senior teacher handling Grade 1 whereas the minor was in a playgroup; The Applicant did not handle the minor directly nor was he in her class; the minor named three of his teachers and was clear that he did not know the Applicant. The trial court misdirected itself on the evidence of access and proximity and on identification and on these grounds the conviction is not likely to be sustained.
5. His prayer was for the Applicant to be admitted to bail pending her appeal being heard and determined; and the terms be as the same as in the lower court. The Applicant was not a flight risk and if granted bail pending appeal she would adhere to the terms as directed by the Honourable Court; all through her trial she had duly adhered to the terms of her bail conditions even at the date of judgment when she was convicted and sentenced;
RESPONDENTS SUBMISSIONS
6. Prosecuting Counsel for the State Mr. Gacharia opposed the application; Bail pending appeal was not an absolute right like for an accused person. The admission to bail pending appeal is purely discretional to the Court; The Court of Appeal has set the standard to be met for the Court to exercise its discretion in admitting the Applicant to bail pending appeal; case law referred to JIVRAJ SHAH vs REPUBLIC- 1976 the main criteria was the existence of overwhelming chances of success of the appeal; the circumstances must disclose the merit of the appeal;
7. In the case of CHARLES RATEMO MATUMO vs REPUBLIC it was held that the mere fact that Appellant believes that the appeal has high chances of success does not constitute exceptional circumstances; it must go beyond belief; Reference was also made to the case of MUTUA vs REPUBLIC where it was held that good character as a presumption of innocence was not exceptional circumstance for this Court to exercise its discretion.
8. The conviction was by a properly constituted court which heard all the evidence tendered before it and she was undergoing punishment because of that conviction and the sentence imposed was fair; the fact that the Applicant may serve a substantial part of the sentence does not also constitute exceptional circumstances to invite discretion;
9. The Respondent prayed that the application be dismissed.
ISSUES FOR DETERMINATION
10. After hearing the respective submissions this Court has framed the following issue for determination;
(i) Whether the Applicant be admitted to bail pending appeal;
ANALYSIS
11. The facts of the case are that the Applicant was tried and convicted before the Kiambu Chiefs Magistrate Case No.E11 of 2019 for the offence of Sexual Assault; she was convicted and given a sentence of Ten (10) years imprisonment; being dissatisfied with this decision she filed the instant appeal and this application for bail pending appeal;
12. Unlike bail pending trial which is a right, the order sought by the Applicant is discretionary; therefore it is for this court to determine whether the application before it is a suitable case for it to exercise its discretion in favour of the Applicant; the key principles for consideration were set out in the case of JIVRAJ SHAH VS REPUBLIC (1986) KLR 605; these being whether the appeal has high chances of success; the existence of exceptional circumstances and the possibility of delay in determining of the appeal leading to the Applicant having served a substantial part of the sentence;
13. It was submitted that the Applicant raised the defence of identification by the minor and proximity to the minor; The Applicant contends that the trial court disregarded this line of defence and failed to evaluate these facts against the totality of the evidence on record and in particular the Applicant’s account of what transpired on that material date.
14. It is this courts considered view that this contention is on a substantial point of law which could result in the appeal being allowed; The above consideration is one of the principles upon which a court may grant bail pending appeal and is cited in the case of JIVRAJ SHAH vs REPUBLIC [1986] (supra) where it was held as follows;
“ if it appears prima facie from the totality the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist”.
15. This Court will not belabor itself in addressing the other issues raised by Counsel for the Appellant in his submissions as it is satisfied by the afore-going reasons that this is a suitable case for this Court to exercise of its discretion in favour of the Applicant.
FINDINGS AND DETERMINATION
16. The application is found to be meritorious and it is hereby allowed.
17. The Applicant may be released on bond in the sum of Kshs.500,000/- pending the hearing of her appeal together with one surety of like amount and one contact person.
18. The Record of Appeal be filed and served within Thirty (30) days hereof;
19. Mention on 2/03/2026 before the Deputy Registrar for compliance.
Orders Accordingly.
DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 19 TH DAY OF DECEMBER, 2025.
A.MSHILA
JUDGE
In the presence of;
Sanja – Court Assistant
Gacharia – for the State
Njehu – for the Applicant
Appellant/Applicant – present
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