https://new.kenyalaw.org/akn/ke/judgment/keca/2026/986

Chesoli v Republic (Criminal Application E095 of 2025) [2026] KECA 986 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 986 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E095 of 2025 JM Mativo, MB Kairaria & AI Hassan, JJA May 22, 2026 Between Benard Kakai Chesoli Applicant and Republic Respondent (An application for bail pending appeal against the original conviction and sentence given in the High Court of Kenya at Naivasha (G. L. Nzioka, J.) dated 17th June 2025 and 15th August 2025 in HCCR.A No. 11 of 2020) Ruling 1.The Applicant was charged in the High Court with the offense of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) of the Laws of Kenya, the particulars of the charge being that on 15th November 2018 in South Kinangop Forest in Kinangop South Sub-County within Nyandarua County, he murdered one Joseph Mwangi Njoroge. 2.That after a full trial, on 17 June 2025, the High Court found the Applicant not guilty of murder as charged but guilty of manslaughter and convicted him accordingly. 3.That he was sentenced to serve 10 years in imprisonment.Being dissatisfied with both conviction and sentence, the Applicant lodged the present appeal and simultaneously filed the Notice of Motion dated 3 December 2025 seeking to be admitted to bail pending the hearing and determination of the appeal. 4.The application is expressed to be brought under Articles 49/1/f and 51 of the Constitution of Kenya, Sections 3(1) &(2), 3A & 3B of the Appellate Jurisdiction Act Cap 9 of the Laws of Kenya, Sections 124 & 379 of the Criminal Procedure Code Cap 75 of the Laws of Kenya, Rules 5(2)(a) and 44(1) of the Court of Appeal Rules, 2022 and all enabling provisions of and is premised on the grounds appearing on its face together with the supporting affidavit sworn by the Advocate of the Applicant, Douglas Musa Machange. 5.The Applicant through his counsel, states that at all material times he was an employee of the Kenya Forestry Service, and the incident that resulted in the death of Joseph Njoroge happened in the course of his services as a forest ranger, and the circumstances of the case did not warrant the conviction and sentence. 6.The appeal, it is stated, has overwhelming chances of success; that the Applicant is ready and willing to comply with any conditions set by the court, and that unless released on bail, the appeal may be rendered nugatory. 7.The Applicant further avers that the appeal raises substantial points of law and fact deserving consideration by this Court and that if the appeal is successful, he will have served an undeserved sentence which will be highly prejudicial and continued incarceration would occasion undue hardship. 8.The application was opposed by the Respondent through learned prosecution counsel who submitted that the Applicant has failed to satisfy the legal threshold for grant of bail pending appeal. 9.Counsel for the Respondent submitted that the Applicant is no longer clothed with the constitutional presumption of innocence, having already been convicted by a court of competent jurisdiction. 10.It was further submitted that the Applicant has not demonstrated the existence of exceptional or unusual circumstances warranting release pending appeal and that the intended appeal does not disclose overwhelming chances of success. The Respondent further submitted that this Court is duty-bound to balance individual liberty against public interest and the need to maintain confidence in the administration of justice, particularly in serious offenses. 11.Finally, that the Applicant has not demonstrated the risk of serving a substantial part of the sentence before the appeal is heard. (See Somo v Republic [1972] EA 476) 12.We have carefully considered the application, the supporting affidavit, the rival submissions by counsel, and the record availed before this Court. 13.The principles governing the grant of bail pending appeal are now well settled in our jurisdiction. Unlike an accused person awaiting trial who enjoys the constitutional presumption of innocence under Article 50(2)(a) of the Constitution, an applicant seeking bail pending appeal against conviction and sentence stands on a different footing, having already been convicted and sentenced by a competent court. 14.The burden, therefore, rests upon such an applicant to demonstrate circumstances that justify the exercise of judicial discretion in his or her favour. 15.The applicable principles were succinctly stated in Somo v Republic (supra), where the Court held that the most important consideration is whether the appeal has overwhelming chances of success and whether there exist exceptional or unusual circumstances warranting release. 16.Similar principles were reiterated in Jivraj Shah v Republic [1986] eKLR, where the Court observed that bail pending appeal may only be granted where there are exceptional or unusual circumstances and where it appears prima facie that the appeal is likely to succeed on account of some substantial point of law. 17.In Daniel Dominic Karanja v Republic [1986] eKLR the Court emphasized that the previous good character of the applicant and the hardship facing the applicant’s family are not exceptional or unusual circumstances. The Court further held that a solemn assertion by an applicant that he will not abscond if released is not sufficient ground for granting bail pending appeal. 18.The law therefore imposes a higher threshold upon an applicant seeking bail pending appeal than that applicable before conviction. 19.We have perused the Petition of Appeal and the proceedings of the trial court. At this interlocutory stage, we are unable to conclude that the intended appeal has overwhelming chances of success. 20.The grounds raised in the petition substantially challenge the findings of fact by the High Court and the manner in which the evidence was evaluated. 21.Those are matters that can only properly be interrogated upon full hearing of the appeal, where the entire record shall be subjected to comprehensive scrutiny. 22.We are therefore not persuaded, prima facie, that the appeal discloses overwhelming chances of success. 23.We have also considered whether the Applicant has demonstrated exceptional or unusual circumstances warranting release pending appeal. 24.The Applicant relies on the fact that he complied with bond terms during trial and that he is a family person likely to suffer hardship while serving sentence. While those matters may invite sympathy, they do not amount to exceptional or unusual circumstances within the meaning of the law. 25.Compliance with bond terms before conviction is expected of every accused person and cannot, without more, constitute a basis for release after conviction. 26.Equally, hardship to family members and disruption occasioned by imprisonment are ordinary consequences attendant upon lawful conviction and sentence. 27.We have further considered the sentence imposed by the trial court and are not persuaded that there exists a likelihood that the Applicant will have served a substantial part of the sentence before the appeal is heard and determined. 28.This Court retains the ability to expedite the hearing of the appeal so as to ensure that the Applicant’s right of appeal is not prejudiced by delay. 29.We find that the Applicant has failed to satisfy the conditions necessary for grant of bail pending appeal. Consequently, the Notice of Motion dated 3rd December 2025 seeking bail pending appeal is hereby dismissed. 30.The appeal shall, however, be fast-tracked and directions shall issue before the Deputy Registrar regarding admission of the appeal and hearing thereof on a priority basis. Orders accordingly. DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MAY, 2026.J. MATIVO..................................JUDGE OF APPEALMURUNGI B. KAIRARIA..................................JUDGE OF APPEALAHMED ISSACK.................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR