https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10018

Andiero v Republic (Criminal Appeal E067 of 2025) [2026] KEHC 10018 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10018 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Appeal E067 of 2025 JM Nang'ea, J July 9, 2026 Between Fredrick Ambunya Andiero Appellant and Republic Respondent Ruling 1.For the court’s determination is a Notice of Motion dated 12th March 2026 by which the Appellant seeks to be admitted to bail pending hearing and determination of this Appeal; consequential release from prison upon terms and conditions deemed fit and that the court does make any other appropriate order. Applicant’s Affidavit Evidence. 2.The Application is propped up by the grounds set out on its face and the Supporting Affidavit sworn by the Appellant. He avers that he was charged before the Nakuru Chief Magistrate’s Court in Sexual Offences Case No. E106 of 2021 with the offence of attempted defilement contrary to Section 9 (1) (2) of the Sexual Offences Act. After full hearing of the case, he was convicted thereof and sentenced to 10 years imprisonment. 3.Aggrieved by the conviction and sentence, he further states that he preferred this Appeal timeously. He had been released on cash bail of Kshs. 50,000 in the lower court and dutifully attended the trial that lasted for 5 years. 4.The court is further told that the Appellant has 4 children of tender years in junior levels of learning. He laments that the prison term of 10 years is very harsh regard being had that he is a first offender. The Appellant fears that he may serve out the entire period before determination of the Appeal. Respondent’s Affidavit Evidence. 5.The Respondent opposes the Application through a Replying Affidavit sworn by Mr Wakasyaka (Prosecution Counsel) on 4th May, 2026. It is deposed inter alia that the Appellant has not demonstrated any exceptional or unusual circumstances warranting grant of bond/bail pending appeal. Counsel also contends that it is not shown that the Appeal has an overwhelming chance of success as the Appellant’s conviction was based on cogent and properly evaluated evidence. The sentence meted out against him is also described as lawful and proportionate to the offence of which the Appellant was convicted. 6.According to Mr. Wakasyaka, the Appeal has been shown to raise triable issues only which do not justify grant of bond/bail pending hearing and determination of the Appeal. The Republic fears that the Appellant could abscond if released considering that he is now a convict serving a custodial sentence. The court is further told that the Appellant is not suffering from any health condition that cannot be managed in prison so as to justify his release as prayed. 7.Learned Counsel for the Appellant and the Respondent chose not to offer submissions. 8.While it is acknowledged that an Appellant has a right to be admitted to bail/bond pending appeal, the right is not absolute but discretionary. 9.In Onyancha vs Republic [2023] KEHC (KLR) and Samuel Macharia Njagi vs Republic [2013] eKLR it was observed that an Applicant need not satisfy all set criteria but has to demonstrate application of two or more criteria that were highlighted in the Ugandan case of Avid Patel vs Uganda S.C. Cr Appeal No. of 2013, to wit; whether the Appellant is a first offender; the Appeal having been admitted, the offence not involving personal violence; the character of the Appellant; the Appeal not being frivolous; any substantial delay in determination of the Appeal; whether the Appeal has a reasonable chance of success and whether the Appellant had been on bail/ bond at trial and complied with terms thereof. 10.Bail/bond pending appeal is at the discretion of Court as held in the case of Charles Owanga Aluoch vs Director of Public Prosecutions [2015] eKLR. The onus is on the Appellant to show why the court’s discretion should be exercised in his favour. 11.In the case of Chimambhai vs Repubic [1971] EA 343 Harris J. observed that the strongest element of presumption of innocence lacks in an application such as this one where an Appellant is seeking bond/bail pending appeal since there is conviction. 12.In Jivrai Shah vs Republic [1986] eKLR and Samuel Macharia Njagi vs Republic [2013] eKLR, the following are among factors to consider in determination of an application for bail/bond pending appeal;a.That the Appeal has overwhelming chances of success.b.The sentence or a substantial part of it will have been served by the time the Appeal is heard.c.The previous character of the Applicant.d.The offence does not involve personal violence.e.The existence of exceptional or unusual circumstances.f.Compliance with bail and bond terms during trial. 13.The court is told that the Appellant has not met the conditions, and the court is therefore urged to dismiss the Application. Analysis and determination 14.Having considered the Application and the rival arguments advanced by Counsel, the statutory basis for an application for bail /bond pending appeal is Section 357 of the Criminal Procedure Code which enacts-“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.’’ 15.The Appellant indeed has the right to release on bail/bond pending Appeal which right is not absolute but at the discretion of the Court. The court’s discretion is of course exercised in a judicious and not capricious manner depending on the facts and circumstances of the case before the court. 16.As whether the appeal is likely to be successful, I have perused the Memorandum of Appeal which faults the trial court for various factual and legal reasons. The record of the lower court has not, however, been availed for this court to appreciate the decision of the learned trial magistrate. In fact the Record of Appeal does not seem to have been compiled and the Appeal admitted for hearing. 17.The Appellant is apprehensive that he stands to serve out a substantial part of the prison term before his appeal is heard and determined. He was sentenced on 4th December, 2025 for a 10-year imprisonment sentence as deduced from this Application. It is likely that he will have served out a substantial portion of the relatively short sentence before his appeal is heard and determined. 18.The Appellant was charged with the offence of attempted defilement and sentenced under Section 9(1) (2) of the Sexual Offences Act which is an offence involving personal violence 19.As regards the question of whether or not there are exceptional circumstances for grant of bail/bond at this stage of the proceedings, Blacks Law Dictionary defines exceptional circumstances as:-“Conditions which are out of the ordinary course of events; unusual or extraordinary circumstances.” 20.The Appellant complied with bail terms imposed in the lower court. It is further worth noting that a substantial part of the not very long sentence could be served out before hearing and determination of this Appeal. These factors are sufficient to warrant grant of bond/bail pending appeal. An Appellant does not have to satisfy all the elements stated in the case of Jivrai Shah supra. 21.The upshot is that the Application 12th March, 2026 is allowed. The Appellant is granted bond pending appeal in the sum of Kshs. 500,000/= (Kenya Shillings Five Hundred Thousand) plus one surety of a similar amount, to be approved by the Deputy Registrar. J. M. NANG’EA, JUDGE.RULING DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JULY, 2026.In the presence of;The Respondent’s Counsel, Mr Wakasyaka.The Appellant’s Counsel, Mr Momanyi for Mr Ombeo.The Appellant.The Court Assistant (Jeniffer).J. M. NANG’EA, JUDGE.