https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6910

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CRIMINAL APPEAL NO. E064 OF 2025** **DAVID KARUA GACHERU...……….....................................APPLICANT** **VERSUS** **REPUBLIC…………..…………………...…..………………RESPONDENT** **R U L I N G** **Brief Facts** 1. The application for determination is dated 19th December 2025 seeking for orders of admission of this appeal that was filed out of time and without leave of the court. It also seeks for orders for release on bail of the applicant pending the hearing and determination of the intended appeal. 2. The applicant states that he was charged in Criminal (S.O) Case No. E001 of 2024 at the Chief Magistrate’s Court at Gatundu with the offence of incest contrary to section 20(1) of the Sexual Offences Act and an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He further states that he was convicted of the principal charge and sentenced to twenty (20) years imprisonment. Being aggrieved with the conviction and sentence, he states that he filed an appeal but the statutory time to lodge an appeal had already lapsed. 3. The applicant argues that his appeal has overwhelming chances of success as the grounds of appeal raise serious questions of law and fact that go to the root of the conviction and sentence. The applicant is apprehensive that he will have served a substantial part of his sentence before the intended appeal is heard and determined. The applicant further states that he suffers from post polio medical condition which requires medical attention from a specialist regularly which is not available in prison and his health is likely to deteriorate if he remains incarcerated. 4. The applicant states that he was on bond during the trial and he attended all sessions without default. The applicant further states that he is a first time offender. 5. The respondent does not oppose the application for extension of time to file an appeal as judgment was delivered on 13/11/2025. The respondent filed a Replying Affidavit dated 18th March 2026 in opposition to the prayer for bail pending appeal. The respondent states that the intended appeal has no chances of success due to the overwhelming evidence against the appellant. Furthermore, the respondent argues that the applicant has to discharge the burden of proof that the appeal has high chances of success as unlike bail pending trial, bail pending appeal is not a constitutional right. There is a presumption that the applicant was lawfully convicted unless the contrary is proved. 6. The respondent further states that the applicant has not discharged the burden that he shall serve a substantial part of the sentence in the event the appeal succeeds nor has the applicant demonstrated any exceptional circumstances to warrant the court’s discretion to grant bail pending appeal. 7. It is further argued that currently the law and practice favour quick determination of matters without unreasonable delay and thus the applicant is unlikely to serve a substantial part of the sentence before the appeal is heard and determined. 8. The respondent states that the assertions by the applicant that he suffers from post polio, he has not attached a recent medical document to show that his health has deteriorated and in any event if he requires any medical interventions, the prison department usually takes care of the medical needs of the inmates. The respondent further states that the applicant has only annexed a document dated 1st September 2022 which is a person with disability assessment report which simply confirms that he is a person living with a disability. Further, the applicant’s good behaviour and absence of prior criminal record are not factors to be considered in bond pending appeal. Thus, the respondent states that the applicant has failed to satisfy the extreme high standard for bail pending appeal. 9. Parties put in written submissions. **The Applicant’s Submissions** 1. The applicant relies on **Article 49(1)(h)** and **50(2)(q) of the** **Constitution** and the cases of **Francis Karioko Muruatetu & Another vs Republic [2017] eKLR**; **JivRaji Shah vs R [1986] KLR 605** and **Arvind Patel vs Uganda S.C CR. Appeal No. 1 of 2003** and submits that he has met the required threshold for an application for bail pending appeal. The applicant refers to the case of **Muthamia vs Republic (Criminal Appeal E029 of 2024) [2024] KEHC 15649 (KLR)** and submits that his appeal is not frivolous and it has raised numerous triable issues which have a high likelihood of success. The applicant argues that the prosecution did not prove its case beyond reasonable doubt as it did not prove the element of penetration. Further, the applicant argues that he was convicted on the uncorroborated unsworn evidence of the complainant and that the charge sheet contained significant defects on the dates of the offence. 2. Relying on the cases of **Republic vs Kanji [1946] 22 KLR and Kigoro Machoro vs Republic Criminal Appeal 11 of 2019 [2019] KEHC 7641 (KLR)**, the applicant submits that he is of an advanced age and suffers from post polio syndrome which requires regular medical check ups and specialized care. The applicant argues that the prison environment is limited in its ability to provide continuous specialized medical attention which places him at a risk of deterioration of health. The applicant further submits that he was a first offender and should the hearing of his appeal be delayed, he shall have served a substantial part of his sentence thus rendering the appeal nugatory. 1. The applicant submits that he is not a flight risk as he attended all the trial proceedings diligently while on bond. Further, he submits that he has strong family and community ties within his jurisdiction and is ready to abide by any conditions that the court may impose. **The Respondent’s Submissions** 1. The respondent relies on **Section 357(1) of the Criminal Procedure** **Code** and the case of **Jivraj Shah vs Republic [1986] eKLR** and submits that the applicant has not met the required threshold for an application for bail pending appeal. Further, the respondent relies on the case of **Somo vs Republic [1972] EA 476** and submits that the appeal does not have overwhelming chances of success as the evidence shows that the applicant was properly convicted. The respondent further submits that the applicant has failed to demonstrate that he shall serve a substantial part of the sentence if the appeal is likely to succeed. 2. The respondent relies on the case of **R vs Kanji [1946] 22 KLR** and submits that the applicant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. 3. Relying on the case of **Chimambhai vs Republic [1971] EA 343**, the respondent contends that currently, the law and practice favour quick dispensation of matters without an unreasonable delay. The respondent argues that the applicant failed to discharge the burden of proof that he is likely to serve a substantial part of the sentence before the appeal is heard which in turn could be successful hence leading to prejudice. The respondent further submits that the prison department arranges for medical interventions when need arises and that abiding by lower court bond terms and good character of the appellant are not factors to be considered by the Honourable Court to release the appellant on bond pending appeal. **The Law** **Whether the applicant has made out a case for the grant of an order for leave to file his appeal out of time.** 1. The court’s power to extend time for filing an appeal is provided for under **Section 349 of the Criminal Procedure Code** as follows:- **An appeal shall be entered within fourteen days of the date of the order or sentence appealed against.** **Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has lapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of** **the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.** 1. The Supreme Court in the case of **Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR** enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:- **“The underlying principles a court should consider in exercise of such discretion should include:-** 1. **Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;** 2. **A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;** 3. **Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;** 4. **Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;** 5. **Whether there will be any prejudice suffered by the respondent if the extension is granted;** 6. **Whether the application has been brought without undue delay.** 7. The applicant was charged and convicted in the Chief Magistrate’s Court in Gatundu in MCCHSO/E001/2024 of the offence of incest contrary to Section 20 of the Sexual Offences Act and was sentenced to 20 years imprisonment. Judgment was delivered on 30th October 2025 and the applicant was sentenced on 13th November 2025. The applicant filed the instant application on 19th December 2025. The applicant did not give any reasons for the delay in filing the appeal. From the record, the applicant requested for a copy of certified proceedings on 30th October 2025. It is my considered view that the delay is not inordinate as the trial court sentenced the applicant on 13th November 2025 and he had already put in a notice of appeal and requested for certified copies of the proceedings. Thus, the memorandum of appeal dated 19th December 2025 is hereby admitted out of time. **Whether the applicant has met the threshold for granting bail pending appeal.** 1. **Section 357(1) of the Criminal Procedure Code** provides for the granting of bail pending appeal, it states that:- **After 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 for granting bond pending appeal were reiterated in the case of **Jivraj Shah vs Republic [1986] KLR 605** which laid down the principles as follows:- 2. **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.** 3. **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.** 4. **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.** 5. It is trite law that in considering an application for bail pending appeal, the court has discretion in the matter which must be exercised judicially taking into consideration the following factors. **Does the appeal have overwhelming chances of success?** 1. The applicant argues that the appeal has a high probability of success. 2. I have carefully perused and examined the trial court proceedings and judgment. I have further examined the grounds of appeal and without pre-empting the appeal, that the said grounds do not disclose an appeal with overwhelming chances of success. This does not mean that the appeal is not arguable. The appellant will still have his day in court to argue his appeal. **Is there a possibility of delay in hearing and determining the appeal?** 1. The applicant was sentenced on 13th November 2025 to serve twenty (20) years imprisonment. Thus it is highly unlikely that he shall have served a substantial part of the sentence before the appeal is heard. The court diary is accommodative of appeals whereas hearing dates are available. As such, I am of the view that the applicant will not serve a substantial part of his sentence before the appeal is heard and determined. **Demonstration of exceptional or unusual circumstances** 1. In **Dominic Karanja vs Republic [1986] KLR 612** the Court of Appeal held:- 2. **The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for** **depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances;** 1. **The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute exceptional circumstances where there existed medical facilities for prisoners;** 2. **A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal;** 3. Similarly in **Peter Hinga Ngotho vs Republic [2015]eKLR** it was held that the fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an applicant to bail pending appeal. 4. In the instant case, the applicant argued that he is of an advanced age, a first offender and that he is not a flight risk. He further states that he suffers from a post polio medical condition. 5. Relying on the above cited cases, it is my considered view that the applicant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bail pending appeal. The fact that the applicant is 58 years old and suffers from a post polio medical condition does not constitute to unusual or exceptional circumstances. In any event, medical facilities are provided for in prison and also in County Hospitals where the prison doctor refers serious medical issues that require extensive and complicated treatment. 1. I therefore find that the application dated 19th December 2025 partly has merit in regard to the admission of the appeal out of time and the said order to appeal out of time is hereby allowed. 2. The petition of appeal to be filed within 14 days, failure to which these orders will be vacated. 3. It is hereby so ordered. ***RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026.*** **F. MUCHEMI** **JUDGE**