https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12652

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E082 OF 2026** DIDA JARSO ACHE…………...…….…….……….APPLICANT/APPELLANT VERSUS REPUBLIC………………………………………………………RESPONDENT *(Being an application for bail pending appeal from the conviction and sentence delivered by Hon. Njeri Nthuku (S.P.M) at JKIA Chief Magistrate's Court, Criminal case no. 27 of 2020 Republic vs Dida Jarso Ache & Yusuf Halkano Sokono)* **RULING** 1. The applicant was charged and, after a full trial, convicted of the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. He was sentenced to ten (10) years’ imprisonment and fined Kshs. 43,290,000, in default of which he was to serve one (1) year’s imprisonment. 2. Being dissatisfied with both the conviction and sentence, the applicant lodged an appeal challenging the same. Simultaneously, he filed the present application dated 19th June 2026 seeking release on reasonable bail or bond pending appeal. 3. The application is premised on the grounds set out on its face and in the supporting affidavit. The applicant contends that his appeal has high chances of success owing to glaring gaps in the prosecution’s case. He further states that he has a family and a permanent place of residence within the jurisdiction, faithfully attended the trial, is not a flight risk and undertakes to comply with any conditions imposed by the Court. 4. The application was canvassed by way of written submissions, which the Court has considered and need not reproduce. 5. Having considered the application, the supporting affidavit, the written submissions and the applicable law, the issue for determination is whether the applicant has satisfied the threshold for the grant of bail pending appeal. 6. The applicable provision is section 357(1) of the Criminal Procedure Code, Cap. 75, Laws of Kenya, which provides: **“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.”** 1. The principles governing the grant of bail pending appeal were restated in **Jivraj Shah v Republic [1986] KLR 605**, where the Court held: *“(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 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 exists.* *(3) 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.”* 1. The rationale for the distinction between bail before trial and bail pending appeal was explained in **Chimambhai v Republic [1971] EA 343,** where Harris J. observed: *“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”* 1. The distinction is material. Article 49(1)(h) of the Constitution guarantees an accused person the right to bail or bond pending trial, subject to compelling reasons. That right is founded, among other considerations, on the presumption of innocence. Once an accused person has been convicted, that presumption ceases to apply. An application for bail pending appeal therefore falls within the discretionary jurisdiction conferred by section 357 of the Criminal Procedure Code and is subject to a higher threshold. 2. The applicant relies on his family circumstances, his status as the sole breadwinner, his good character and his compliance with the bail terms during trial. While these matters are relevant to his personal circumstances, they do not, without more, constitute exceptional circumstances. In **Daniel Dominic Karanja v Republic (1986) KLR**, the Court held that the availability of sureties, ill health and the suffering of a convict’s family are not grounds for granting bail pending appeal. The applicant’s responsibility for supporting his family, though regrettable, does not meet the requisite threshold. Neither does his compliance with the bail terms during trial constitute an exceptional circumstance. 3. The Court may, in an appropriate case, take into account the anticipated delay in the hearing of the appeal, the length of the sentence, whether the applicant pleaded guilty and the possibility of a non-custodial sentence. These considerations must, however, be assessed alongside the prospects of the appeal and the particular circumstances of the case. (See **Krishnan v The People (SCZ 19 of 2011) [2011] ZMSC 19 (20 October 2011).** 4. I have carefully perused the petition of appeal, the proceedings and the judgment of the trial court. Without expressing any concluded opinion that may prejudice the determination of the substantive appeal, I note that the appeal raises substantial and arguable issues concerning the evidence relied upon to found the applicant’s conviction for trafficking in narcotic drugs. 5. The applicant has identified what he considers to be material gaps in the prosecution case. At this interlocutory stage, it would be inappropriate to undertake a detailed evaluation of the evidence or pronounce upon its sufficiency. That exercise is properly reserved for the hearing of the appeal. It is sufficient to observe that the grounds advanced raise substantial issues deserving full appellate consideration. 6. On the material presently before the Court, and solely for purposes of determining this application, I am satisfied that the appeal discloses substantial merit and has high prospects of success within the principles enunciated in **Jivraj Shah v Republic [1986] KLR 605.** 7. I have also considered the applicant’s conduct during the trial. The record shows that he was admitted to bail, attended court as required and complied with the terms imposed upon him. There is no allegation that he absconded or interfered with witnesses. The respondent has likewise not placed before the Court any material suggesting that the applicant poses a flight risk or that his release pending appeal would prejudice the administration of justice. 8. I have further considered the applicant’s age, being 68 years. His age, coupled with his previous compliance with the terms of bail and the substantial issues raised in the appeal, is a relevant consideration in determining whether he should remain at liberty pending the hearing and determination of the appeal. 9. Accordingly, the application dated 19th June 2026 is allowed in the following terms: 10. The applicant is released on a surety bond of Kshs. 300,000 11. In the alternative to (i) above, the applicant shall be released upon depositing cash bail of Kshs. 100,000 with one contact person. 12. The applicant shall deposit his passport in court (if any) and shall not travel outside the jurisdiction of the court without leave of court. 13. The applicant shall report to the investigating officer every month on a day to be agreed upon until the appeal is heard and determined. Orders accordingly. **Ruling dated and delivered virtually this 5th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Echesa for the Applicant/Appellant Ms. Otiya for the Respondent Karimi Court Assistant.