Juma v Republic (Criminal Appeal E080 of 2025) [2026] KEHC 5391 (KLR) (24 April 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. E080 OF 2025 CALVINS OTIENO JUMA …....……….……….…….…............ APPELLANT - VERSUS - REPUBLIC ……………….…………………………………….. RESPONDENT (Being an appeal from conviction and sentence of Hon. L. Kiniale SPM delivered on the 12/8/2025 in Nyando MCSO No. E031 of 2023 RULING 1. By summons in Chambers dated 21/8/2025, brought under section 357 of the Criminal Procedure Code, the appellant sought to be released on bail/bond pending the hearing of his appeal. That the sentence of 20 years meted on 12/8/2025 be stayed or suspended until the appeal is determined. 2. He supported the Summons with his affidavit of 21/8/2025. He deposed that he was tried, convicted and sentenced to 20 years by the Nyando Magistrate’s Court in Nyando MCSO/E003/2023. That he was dissatisfied with that decision and had preferred the present appeal. That there was jurisdiction to grant the prayers sought. 3. He stated that there existed exceptional circumstances to warrant the orders sought. This was that he had an asthmatic and allergic condition which requires specialized attention, care and diet. He produced a medical report in support thereof. 4. That his continued incarceration was be prejudicial to him. He was a family man with a wife and four children. He is a first offender and of good Page 1 of 6 character. Further, that the appeal has high chances of success. That there will be substantial delay in the determination for the appeal and if it ultimately succeeds, it will be rendered nugatory. That he had been granted bail of Kshs.100,000/- during the trial. That in the premises, the orders sought ought to be granted. 5. The application was argued by way of written submissions dated 10/12/2025 and 5/11/2025 by the appellant and State, respectively. 6. Mr. Onyango, Learned Counsel for the appellant submitted that the law allowed the suspension of sentence pending appeal. That one of the exceptional circumstances was the appellant’s asthmatic and allergic condition. That if he continued to be in detention, it may jeopardize him. 7. He further submitted that the appeal had high chances of success. He set out 4 critical grounds of appeal which according to him, had overwhelming chances of succeeding when argued on appeal. He cited the case of Jivraj Shah vs Republic (1986) KLR 605 on the principles applicable in an application for bond pending appeal. Further, he relied on the Court of Appeal decision in Dominic Karanja vs Republic (1986) KLR 612 on what will constitute exceptional circumstances. 8. Mr. Onyango further argued that, the appellant was on bail during his trial and never breached its terms. He cited the case of Peter Hinga Ngotho vs Republic (2015) eKLR for the proposition that; the fact that the applicant did not breach the bail conditions in the court below, is an exceptional circumstance warranting to admit an applicant to bail pending appeal. He urged that the application be allowed. 9. Ms. Kagali, Learned Prosecutor opposed that application. She submitted that the Court should consider the principles set out in Jivraj Shah vs Page 2 of 6 Republic (1986) eKLR. That no exceptional circumstances had been demonstrated to warrant the granting of bail or bond. The condition alluded to was not life threatening and could be managed at Kisumu Maximum Prison. That the applicant can be escorted to any hospital outside the Prison for treatment in the event of an attack. 10. That the Court should be cautious from considering the merits or demerits of the appeal. No weighty or substantial point of law had been raised. That since the sentence to be served is long up to 20 years, the appeal will be concluded in good time. She urged that the application be dismissed. 11. I have considered the averments by the applicant and the able submissions by Learned Counsel. This is an application for bail/bond pending appeal. Such is an application that is made after an accused has undergone a proper trial and has been convicted by a trial court. For that reason, there must be special circumstances to be considered in such an application. 12. In Jivraj vs Republic (1986) KECA 36 (KLR) the Court of Appeal held: - “There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist 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 from the totality of the circumstances that the appeal is likely to be successful on account of a substantial points of law to be urged, and that the sentence as a substantial part of it, will have been served by the time the appeal is heard, conditions of granting bail will exist.” Page 3 of 6 13. From the foregoing, it is therefore clear that the three considerations in such an application are; the existence of exceptional or unusual circumstances, the likelihood of the appeal succeeding on account of a substantial point of law to be argued and that by the time an appeal is argued a substantial part of the sentence would have been served. 14. What is an exceptional or unusual circumstance? In Dominic Karanja vs Republic (1986) KLR 612, the Court held that prison institutions have medical facilities to which prisoners have access and therefore ill health alone does not justify bail unless prison capabilities are demonstrably insufficient. 15. In the present case, it was contended and argued that there existed an exceptional circumstance. This was the Asthmatic and allergic condition which require specialized medical attention, care and diet. The State retorted that the Kodiaga Maximum Prison has medical facilities that can deal with the appellant’s condition and that in any event, he can be escorted to specialized medical facilities outside Prison for treatment. This was not rebutted. 16. The Court has considered that the burden is always on he who alleges the existence of a fact who has to prove the same. (See section 107 of the Evidence Act). It was upon the applicant to show that the condition he was suffering from cannot be adequately or properly handled at Kodiaga Prison. That the facilities there are inadequate. He never even alluded to that fact so as to shift the evidentiary burden of proof to the State. It was for him to show that; he had been suffering from that condition for a considerable period, he has been attending specialized medical attention, that he believed such attention is non-existence in the Prison he was incarcerated. Page 4 of 6 17. Accordingly, the Court concludes that it had not been demonstrated that Kodiaga Maximum Prison cannot effectively or adequately deal with an Asthmaic and Allergic condition which the appellant faces. That is not an exceptional or unusual circumstance. 18. As to the chances of appeal; the appellant raised four critical issues. These were repeated in paragraph 9 of the supporting affidavit. I refrain from considering them at this stage so as not to prejudice the appellant. However, from authority, the Court of Appeal was clear that the appeal should have an overwhelming chance of succeeding on account of a substantial point of law. In the view of this Court, the four issues raised in this case are factual save for one. That does not satisfy the second principle laid by the Court of Appeal. 19. The third principle is that a substantial part of an appeal may have been served by the time the appeal is determined. My understanding of this principle is that, if the sentence is too short and it may have been served or a substantial part thereof served by the time an appeal is determined, bail or bond pending appeal should be considered. 20. In the present case, the sentence is 20 years. It was meted out in August, 2025. Had the appellant pursued the proceedings, the turn-around of appeals in Kisumu High Court is 1 year. He would by now have had his appeal listed and ready for hearing in less than 1 year. There will be a whole 19 years left on his sentence. The Court does not think the third limb has been proved. 21. Accordingly, the application is without merit and is hereby dismissed. Let the appeal be set down for hearing. Page 5 of 6 It is so ordered. DATED and DELIVERED at Kisumu this 24th day of April, 2026. A. MABEYA, FCI Arb JUDGE Page 6 of 6