Odongo v Republic (Criminal Appeal E044 of 2025) [2026] KEHC 10504 (KLR) (Crim) (13 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **HIGH COURT AT NAIROBI** **CRIMINAL DIVISION-MILIMANI** **CRIMINAL APPEAL NO E044 OF 2025** **DERRICK EMALI ODONGO-Vs- REPUBLIC** **RULING ON BAIL PENDING APPEAL** **INTRODUCTION** 1. The Accused person was convicted of the offence of Impersonation of a Police Officer and Being In Possession of Government Stores contrary to **Section 10 (b) of the National Police Service Act** **and Section 324 (2) as read with Section 36 of the Penal Code.** 2. The particulars of the charges are that: On 23rd May 2025 at around 0630hrs along Muringa Lane off Kenneth Matiba road in Nairobi not being a Police Officer and without written authority of the Inspector General of Police pretended to be a Police Officer by introducing himself to **NO 111210 PC Walter Owili and No 116389 PC Katana Onesmus** by powers conferred to them under **Section 26 of the Criminal Procedure Code** had in his possession **one handcuff serial number KE-KP 1402** which he was by law not entitled to own . 3. Being in possession of Government stores contrary to section 342 as read with Section 36 of the Penal Code .The accused on the said date and place having being detained by No.111210 PC Walter Owili and No. 116389 PC Katana Onesmus had in his possession a handcuff serial number KE-KP 1402 such property being reasonably suspected of having being stolen or unlawfully obtained. 4. The Trial Court sentenced the accused to 3years imprisonment in count 1 and 1 year imprisonment in Count 2 respectfully which were ordered to run concurrently as per the judgment and sentence issued in City Magistrate Court **Case No. MCCR E475 2025** delivered on **5/9/2025** 5. The Accused person now convicted and sentenced appealed before this court vide petition of appeal dated 5/9/2025 and supplementary petition of appeal dated 3/3/2026 6. The Appellant filed the application dated 3/3/2026 and prays for bond pending appeal and FOR ORDERS THAT. The Appellant applicant to be admitted on the same terms as granted in the lower court being Cash Bail of Ksh 100,000/= or such other terms as the Hon. Court may deem fir and just. **GROUNDS OF THE APPLICATION.** 7. The Application is brought on grounds on the face of the application and the appellant’s supporting affidavit 8. The Appellant is suffering from chronic peptic ulcers with H pylori infection & gastritis which require stable environment and ongoing treatment managed outside prison. 9. That incarceration exacerbated his condition and poses risk to his health. 10. That the Appellant is the sole breadwinner of his family and has a child in school (attached copy of Birth Certificate)with accumulated fee arrears. Further that the appellant’s family risks eviction following accumulated rent (copy of Eviction Notice)arrears and that there is no alternative source of income to sustain them. 11. The appellant complied with bond terms during Trial and demonstrated that he is not a flight risk and he will abide by conditions imposed by the court . 12. That the Appellant is likely to serve a substantial portion of the sentence by the time the appeal is determined. **SUPPORTING AFFIDAVIT.** 13. The Appellant depones that his health condition deteriorated due to inadequate medical care and supply of essential medication within the prison. That prescribe drugs and specialized treatment he requires is either unavailable, inconsistently provided or insufficient to manage his condition and that this exposes him to complications and potential irreversible harm and /or fatality. 14. That the Court considers the best interest of his child and eminent eviction of his family as per attached eviction notice and copy of the minor’s birth certificate. 15. That he has a fixed abode in Korogocho within Nairobi County where his family is currently residing. Further that he has served 10 months of the 3 years sentence and he will likely serve a substantial party if the sentence if orders are declined. 16. Lastly that he is a first offender without a criminal record and this demonstrates good character and strong community ties that make him a low risk of absconding or reoffending. 17. That the offence was nonviolent and it was not directed against any individual. There is no risk to harm the society if he is released on bond. **GROUNDS OF OPPOSITION.** 18. The Prosecution filed grounds of opposition dated 8/5/2026 and reiterate that the application is misconceived bad in law and is misconceived. That the conviction and sentence was lawful. That the appeal does not disclose overwhelming chances of success and does not raise substantial points of law and fact. The medical conditions do not disclose any condition that cannot be managed within the prison medical facilities or referral to public hospitals. Further that the appellant has not demonstrated exceptional or unusual circumstances to warrant grant of bail. **WRITTEN SUBMISSIONS.** 19. The Appellant submits that his health condition and the hardships faced by his family demonstrates exceptional circumstances. 20. That he suffers from peptic ulcers and secondary to Hpylori infection as per medical evidence annexed in the application and that he has experienced recurrent gastric pain, vomiting (blood stained) diarrhea and general weakness. That the Prison facility has not provided specialised treatment, full course and special diet required for his medication. 21. That the supplementary petition of appeal raises serious issues challenging the propriety of the conviction and glaring contradictions and inconsistencies of the witness testimony. Further that the elements of the offence were not sufficiently proved and the Court did not consider his defence. 22. The Appellant refers to the case of **Kosgei –Vs- Republic E002 of 2003 and Samuel Macharia Njagi -Vs- Republic Criminal Appeal 50 of 2013** and urges that the offence was nonviolent and he was not a flight risk. 23. Further that remission will reduce the sentence to 2 years. The appellant has served close to a year and is likely to serve the entire term by the time the ruling of the application is delivered. Court backlog and realities of the court diary also poses a likelihood of him serving a substantial part of the sentence. 24. The Appellant refers to the case of **Gitau –Vs- Republic E082 of 2025 and Ali –Vs- Republic (2022) KEHC 17020 KLR** on consideration of remission period and which will reduce the period and a substantial part of the sentence will be served during the appeal. **PROSECUTION SUBMISSIONS.** 24. The Prosecution submits that bail pending appeal is not a constitution right and is granted in exceptional and rare circumstances. 25. That the Appellant lost the constitutional right of presumption of innocence and that the appeal does not raise arguable grounds and glaring points of law or manifest illegality. 26. On whether there exist unusual circumstances, the prosecution reiterate that the offence was serious in nature and that it undermines public confidence in law enforcement agencies. That public interest weighs heavily against his release. 27. That the Appellant has not produced substantial evidence that prison authorities are unable and unwilling to provide necessary treatment. **ANALYSIS AND DETERMINATION.** **28. Section 357 of the Criminal Procedure Code** provides that: “***After the entering of an appeal by the 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 the appeal.”*** 29. The Appellant was convicted in Nairobi City Court **Criminal Case No E 475/2025** to serve a 3 years jail term;3 years imprisonment for Count 1 impersonating A Police Officer and 1 year imprisonment for being in possession of Government stores; handcuffs without authority. Both sentences are to run concurrently. 30. The existence of the appeal does not stay or suspend the sentence, the appellant must demonstrate that his appeal has overwhelming chances of success. That his case is exceptional and raises unique or special grounds for his release on bail. Lastly that the sentence is likely to be exhausted before this appeal is fully resolved. 31. Further, granting bail is the discretion of the court and is allowed only in rare circumstances. 32. In **Mary Ngechi Ng’ethe v Republic [2021] KECA 601 (KLR)** the Court of Appeal further added that :- ***However, in exercising such discretion, the Court has to bear in mind that a person who has been convicted by a competent court has lost the presumption of innocence conferred on him/her by the Constitution and that during the hearing of the pending appeal, the burden would be upon the convicted person to show that the conviction was wrong and the sentence illegal. Therefore, as it has been stated time and time again bail pending appeal will only be granted in rare and exceptional circumstances.*** 33. The Court cited the case of **Michael Otieno Ademba –Vs-. Republic (1982-88) 1 KAR 263 and Abdi –Vs-. Republic [1991] KLR 171.** **The Appeal’s Chances of success.** 34. The Appellant supplementary petition of appeal raises 10 grounds summarized as follows:- 1. That the Court failed to resolve material contradictions on number of arresting officers, whether he was also or with a suspect and the exact words that the appellant used when he introduced himself. 2. That the Court dismissed his defence as mere denial contrary to the trial court’s duty to analyse it .That the right to fair trial was jeopardised. 3. That the prosecution failed to proved that he was in possession of handcuffs which were suspected to have been stolen or unlawfully obtained. 4. That the prosecution failed to prove a *prima facie* case and the court shifted the burden to the appellant. 35. The Appellant has the burden of proof to establish arguable grounds that have high chance of succeeding and setting aside the conviction and/or sentence. 36. Bail and Bond Policy Guidelines at paragraph 4.30 – which provides that “T***he burden is on the convicted person to demonstrate that there is an overwhelming chance of success”.*** 36. I have considered the application and submissions filed and the judgement of the Trial Court. 37. The Court at this stage cannot conclusively confirm the high chances of success of the Appeal and resolving the grounds of appeal and making final conclusions at the interlocutory stage in the absence of the original Trial Court Record. 38. In **Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR)** citing Supreme Court of India in the case of **Krishnan v The People{{^}} {SCZ 19 of 2011}, {2011} ZMSC 17** where the court held that : ***It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.*** 38. I find that the evidence on record was corroborated through prosecution witnesses and the inventory proved that the appellant was found in possession of the handcuffs. The sentence was within the provisions of Section 102 and 36 of the Penal Code and therefore lawful. 39. Whether the prosecution testimony was contradictory and whether such contradiction and discrepancies will alter the conviction is ground that is best resolved at the main hearing of the appeal 40. The prosecution’s proof of the elements of the offences and the credibility of the defence is also an issue for full appeal hearing. 41. However, this Court read the Judgment of the Trial Court and the typed proceedings and found that although at the time of arrest the Appellant who was in possession of handcuffs and claimed to be a Police Officer, he did not present to Arresting Officers his Appointment letter/Certificate that he was an Officer from Nairobi County Government. 42. It was later confirmed by the Investigation Officer who later confirmed through a letter of 2/4/2025 he wrote to Nairobi County Government and he received a letter in reply from Nairobi County Government dated 24/4/2025 that the Appellant was an employee and sent employment letter employment number No 2024015356 employed as a Constable. This is a crucial issue in the appeal. It means it is possible he may not have impersonated a Police Officer only at the time of arrest he did not provide proof that he was an Enforcement Constable Officer of County government of Nairobi this was revealed after enquiry during investigations. **Whether the Appellant’s case raises exceptional circumstances.** 43. I have considered the attached medical report ,diagnosis and treatment prescription from Catholic dispensary Kariobangi dated 26/7/2025 and follow up letter dated 28/8/2025 .The Appellant was taken to the dispensary by a relative .He complained of gastric pain and had episodes of diarrhoea vomiting with blood and also abdominal bloating 44. The Appellant was convicted in September 2025. I find that his condition was managed at Catholic dispensary in Kariobangi on 26/7/2025 and 28/7/2025.This is treatment was during the trial when the accused was out on bond . 45. There is no record of follow up with the prison and that his condition was subsequently managed by the prison. More reports would be necessary to corroborate his case on his current state and special medical needs. 45. On whether health conditions of an accused is an exception ground, the Court of Appeal in **Dominic Karanja v Republic [1986] KLR 612** set the principle holding that: ill- health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners. Further that: The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. 46. In the case of **Mary Ngechi Ng’ethe –Vs- Republic [2021] KECA 601 (KLR)** where theCourt of Appeal declined bail where the Applicant had a son with special medical needs and that he also suffered from vertigo and blood pressure . 47. The Court found that the son was in a special school and that : **“T*here is no evidence that he has been neglected or urgently requires parental care. That the second issue raised is that the applicant suffers from occasional vertigo and blood pressure. There is no prima facie evidence that the condition of the applicant cannot be managed at the prison*.”** 49. In this case, the Appellant’s medical condition can be easily managed with relevant referrals in the course of the appeal. 50. The Applicant has referred court to the eviction notice attached addressed to Irene Nthenya and the birth certificate of his child born on 28/7/2021 .His case is that his child education is at stake following fee arrears and also there is eminent eviction of his household. I find that the issue of fee arrears is not substantiated and his relation with Irene Nthenya who risks eviction is not established. 51. The prosecution has submitted that attendant hardships in prison is not an exceptional circumstance. 52. It is trite that incarceration is a lawful limitation of fundamental freedom under **Article 24 of the Constitution.**The effect of incarceration is that the inmate’s daily life and family obligations is likely to be affected. I find that such circumstances and hardships are not unusual. 53. **Article 53 of the Constitution** provides for the best interest of the child in situations where children are affected. The rights of a child affected by his care giver’s incarceration is an exception circumstance. It is appropriately considered for care givers and parents with children of tender age whose children are also housed in the prison such that the child is separated from criminal justice. Its implementation requires l reports from the children officer on the well being and safe custody of the child. 54. In this case and with the finding of the Court of Appeal in **Mary Ngechi Ng’ethe –Vs- Republic** above, I find that the evidence of fee arrears is not submitted. Further that the wellbeing of the appellant’s child can be resolved through the parents, guardians and the children office. **The sentence period.** 55. The appellant has served 10 months from the date of sentence and has also invited us to consider the remission period, the case backlog of this court and the diary. The appellant remains with 2 years jail term and the appeal can be expedited to prevent any prejudice. .**56.** The celebrated case of **Jivraj Shah vs Republic Criminal application Nairobi 18 of 1986 Nyarangi Gachuhi Apaloo JJA** where the Appellant grounded his application on overwhelming likelihood of success on appeal and had served substantial part of the sentence while he suffered ill health; the court observed; ***The Court held that the principal consideration is if there exist exceptional or unusual circumstances upon which the Court may conclude that it is in the interest of justice to grant bail. 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 will exist.*** 57. Although the Appellant has not provided current official medical documents to confirm current health standards/ condition and the appeal is yet to be heard and *inter partes* and determined I find the issue of Appellant’s impersonating a Police Officer to the Police Officers on patrol and found in possession of handcuffs and later during investigations formal communication confirmed he was employee of Nairobi County Government as Constable is a vitiating factor upon hearing of the appeal. **DISPOSITION** 1. **I am compelled therefore to err on the side of grant of bail and bond pending appeal.** 2. **The Appellant is granted bail pending Appeal of Ksh 300,000/- bond with 1 surety or Cash bail of Ksh 100,000/- with contact person with valid ID card or Payslip or Chief’s letter.** 3. **The Appellant to comply with terms of bail and bond pending appeal attendance of/to Court on dates required until Appeal is heard and determined.** 4. **In default the bail and bond terms shall be cancelled forthwith and the Appellant to serve remaining sentence.** 5. **The matter shall be mentioned before DR Criminal Division on 13/8/2026 for slating the Appeal for hearing in the Next term.** **RULING DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION AT NAIROBI THIS 13/7/2026 VIRTUALLY/PHYSICALLY.** **M.W. MUIGAI** **JUDGE**