https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11411

Njira v Prosecution (Criminal Revision E011 of 2026) [2026] KEHC 11411 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11411 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Revision E011 of 2026 EM Muriithi, J July 23, 2026 Between James Karangu Njira Applicant and Prosecution Respondent Ruling 1.By Notice of Motion dated 16/4/2026, the applicant who has been convicted and sentenced to imprisonment for twenty (20) years for the offence of defilement contrary to section 8(1) and 8(3) urges high chances of success of the appeal and seeks bail pending hearing and determination of the appeal, in speciifc reliefs as follows:“1.That this Honourable court, be pleased to certify the Application as urgent, deserving of being heard on a priority basis,2.That this Honourable Court be pleased to admit and/or grant the applicant bail/bond pending the hearing and determination of the intended appeal, on terms as the Court sees fit;3.That upon the granting of prayer (2) above, this Court grants stay of execution of the conviction and sentence of the impugned judgment pending the hearing and determination of the intended appeal herein.4.Anyother or further orders as this Honourable court, may deem fit to grant in the interest ofjustice.” 2.The applicant’s application is opposed by the DPP who has filed Grounds of Opposition dated 15/6/2026 contending that no exeptional or unusual circumstances have been cited and no weakness in the trial court proceedings to demonstrate overwhelming chances of success of the appeal had been shown. 3.Both parties rely on the leading decision on bail pending appeal Jivraj Shah v. Republic [1986] eKLR, each asserting that it has fit its case on the principles therein established. Grounds of Appeal 4.The ground of appeal are set out in the Memorundum of Appeal dated 16/4/2026 as follows:“1.That the Learned magistrate erred in law and in fact in her orders/directions delivered on the 17th day of March, 2026 and 14th of April 2026 respectively, by upholding the Prosecution's case theory against the tide of overwhelming inconsistencies and contradictions.2.That the learned magistrate erred in both law and fact in finding that the complainant correctly identified the Appellant herein by way of recognition, in the absence of any evidence to support the said conclusion.3.That the learned magistrate erred in both law and fact by determining that it was the Appellant herein that Sexually assaulted the complainant in the absence of any evidence whatsoever linking the Appellant herein to the said offense.4.That the learned magistrate erred in both law and fact by finding that there was no grudge between the Complainant's uncle and the Appellant herein despite glaring evidence to the contrary pointing to clear motivation for framing of the Appellant.5.That the learned magistrate erred in both law and fact by shifting the burden of proof upon the Appellant and absolving the prosecution of its statutory duty to prove the allegations beyond reasonable dount.6.That the learned magistrate failed to consider the evidence tendered by the Appellant herein in the primary suit nor consider the admissions and material contradictions that were laid bare during cross-examination of the prosecution witnesses, thereby arriving at an erroneous decision.7.That the learned magistrate erred in both law and fact by sentencing the Appellant herein to twenty years imprisonment despite widejurisprudence to the effect that the court's discretion is not shackled by the mandatory terms prescribed by the legislature when sentencing.8.That the learned magistrate erred in both law and fact by relying on circumstantial evidence to convict the Appellant herein, instead of the legislative parameters established thus occasioning a grave miscarriage of justice.9.That the learned magistrate erred in both law and fact by asserting that the Appellant herein was accosted by mob justice, whereas evidence clearly indicated that the complainant's uncle was the sole assailant, with an ongoing assault case currently ongoing against him.10.That the learned magistrate erred in both law and fact by failing to recall the prosecution witnesses after taking over the matter to ascertain the veracity of their evidence prior to proceeding with the case against the Appellant herein thus occasioning miscarriage of justice.It is proposed to ask the court for orders:1.That the Appeal be allowed.2.That the Conviction and Sentence of the Senior Principal Magistrate's Court of Kenya at Kerugoya delivered by Hon. NellyWangeciKariuki (SPM), on 17th March, 2026 and 14th April 2026 respectively, be set aside and or quashed.3.That a declaration do issue that there was a mistrial which infringed on the Appellant rights.4.That the Appellant herein be set forth at liberty unless otherwise lawfully held.5.That the costs of this Appeal be provided for.06.Any other or further orders as this Honorable court may deem fit to grant.6in the circumstances of the case and in the interest of justice.Dated at Nairobi this 16th day of April 2026.E. Rai & Co. Advocates for teh Appellant.” Submissions 5.By Submissions dated 16/6/2026, the appellant urges overwhelming chances of success of appeal and exceptional circumstances of the case as follows:“12.The principles to be considered in an application for bail pending appeal pursuant to the provisions of Section 356 and 357 of the Criminal Procedure Code were set out in the Court of Appeal case of Jivraj Shah VS'Republic (1986) eKLR which held as follows:-1."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 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist.The decision in Somo v Republic (1972) EA 476 which was referred to by this court with approval in Criminal Application 5 No. NAI 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of ovetwiielminq chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued. It is almost selfdefeating to attempt to define phrases or to establish formulae."13.Alive to the twin requirements that the Applicant needs to satisfy for the grant of bail pending Appeal, to wit; that the Appeal has overwhelming chances of success and the existence of exceptional or unusual circwnstances, the Applicant proceeds as hereunder.14.From a perusal of the grounds of Appeal, as set forth in his Petition of Appeal, the Applicant submits that the same raise weighty points of both law and fact, that if considered, would inevitably lead to success and the quashing of both the sentence and conviction by the trial court.15.On the second limb, the Applicant submits that he suffered extensive and grievant injuries to his arms that saw him undergo medical surgeries for the implant of metal props to support both his arms, with the perpetraitor facing an angoing trial in Kerugoya Magistrates Court, Criminal Case Nwnber 822 of 2023, currently at the Deiense Hearing Stage.16.The consequence of the said injuries and medical procedure, is that the Applicant, is condemned to experience excruciating pains during cold periods of the day and needs regular check-ups, that would better be addressed by his family, who are willing to be his guarantors, should the court admit him to bail.17.The Applicant submits that he has no other charges against him and did not breach any of the bail conditions that were set by the trial court. That the Prosecution would not suffer any prejudice as their witnesses have already testified.18.The Applicant further submitts that he is of good character and the Respondent did not controvert any of the facts contained in his Application. That even though he was convicted, the Applicant urges this court to find that he has an unlimited right of appeal and there is a presumption that the trial court could be wrong. In this supposition, the Applicant reliess on YahyaAbmed Shee alias Basode v R~ub1ic [2021] KEHC7528.19.Your Lordship, thee Applicant further submits that he maintained an excellentcharacter during the trial and he did not tamper with witnesses, who have now fully testified. Conclusion.20.Your Lordship, we submit that the Applicant has met the threshold for the grantof bail pending appeal and urge that this Honourable Court exercises its discretion in the Applicant's favor.21.We seek the court's indulgence and so submit.Dated at Nairobi this 16th day of June 2026E. Rai & Co. Advocates for teh Appellant” 6.In its Submissions dated 15/6/2026, the DPP contends that no sufficient grounds have been established to warrant the grant of bail pending appeal as follows:““Whether the Applicant has met/demonstrated the minimum requirements for grant of bail pending appeal6.The principles for grant of bail pending appeal were set out in the case of Jivraj Shah v Republic (1986)e KLR as follows:(a)existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests of justice to grant bail;(b)If it appears prima facie from the totality of circumstances that the Appeal is likely to be successful on account of some substantial point of law to be argued(c)The sentence or a substantial part of it will have been served by the time the Appeal is heard(d)The main criteria is that there is no main 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, weight and relevance of the points to be argued.7.On whether there exists unusual or exceptional circumstances to warrant grant of bail pending appeal, the Applicant has not proffered any argument signifying the existence of unusual or exceptional circumstances to warrant grant of bail pending appeal8.On this limb, we humbly submit that here are no unusual or exceptional circumstances that have been demonstrated by the Applicant that the Court can fairly conclude that it is in the interest of justice to grant bail.9.On whether the Appeal has overwhelming chances of success, the Applicant alleges that his conviction and sentence was based on wrong principles of law and he reliesupon this ground which he places his belief that his Appeal has high chances of succcess.10.In our humble view, The Trial Court in arriving at its determination in the instant case considered all evidence that was tendered by the Prosecution and the Applicant and found that the all elements of the offence for which the Applicant/Appellant was charged had been proved beyond any rea onable doubt. In our humble view, it is not possible that this Court can with certainty say that the appeal has overwhelming chances of success.11.On whether or not the sentence or a ub tantial part of it will have been served by the time the Appeal is heard and determined, we submit that the Applicant's Sentence was for a term of twenty (20) year. In our humble view, the Applicant is not likely to have served a substantial period of his sentence based on the Judiciary Performance Monitoring and Management Under tanding that requires Appeals in the High Court to be heard and determined within 180 days of receipt of the Record of Appeal.12.We humbly submit that the Applicant has not advanced sufficient grounds to satisfy this Honourable Court that justice would be endangered if he is not granted bail pending appeal.13.Your Lordship, it is our humble prayer therefore, that the Application for bail pending appeal has not be denied.Dated at Kerugoya this of 2026S. NyikaFor: The Director of Public Prosecutions” 7.The jurisdiction of the court to grant bail pending appeal is expressed in section 357(1) of the Criminal Procedure Code and it is not in dispute. 8.As this court understands the issue, bail pending appeal is to be granted in cases of exceptional or unusual circumstances. The bail pending appreal is not a right as the applicant is now a convict who does not enjoy the presumption of innocence under article 50(2) of the constitution. 9.The exceptional or unusual circumstances which may justify grant of bail pending appeal include an overwhelming appeal; and past good character of the offender or his ill health are not exceptional circumstances, save where in case of ill-health the prison authorities have certified that they are incapable of dealing with medical treatment required of the offender at their prison health facility. 10.This court had opportunity to consider the principles applicable in an application for bail pending appeal in the case of Boke Chacha v. Republic (2013) KEHC 5818 and held as follows:“4.According to authorities on bail pending appeal, bearing in mind that the applicant has now been convicted by a competent court and is on punishment for the conviction which stands until it is set aside on appeal, the criteria for consideration is:a.Whether there exists exception or unusual circumstances which justify grant of bail in interests of justice. See Jivraj Shah v. R (1986) KLR 605.b.Such exceptional circumstances exist where the appeal has overwhelming chances of success or where a set of circumstances exist which disclose substantial merit in the appeal and that the sentence or a substantial part of it will have been served by the time the appeal is heard. See Jivraj Shah supra; Mutua v. R (1988) KLR 497; and Somo v. R (1972) E.A 476.c.The previous good character of the applicant and the hardships facing his family, and his ill health, where there existed prison medical facilities for prisoners, are not exceptional or unusual circumstances. See Dominic Karanja v. R (1986) KLR 612.d.A solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal. See Dominic Karanja, supra.” 11.The offender in this case did not attach the proceedings of the trial court from which this court would be able to consider the evidence presented before it and determine the existence of an overwheling appeal. 12.The applicant attached the prosecution statements of the witnesses in the case, and this court is not able to determine whether the witness statements were presented before the trial court; whether the witnesses were called to testify; and whether they were cross-examined and re-examined, and to what effect. 13.However, having seen the statements of prosecution witnesses attached to the application and the trial courts evaluation of the evidence as shown in the Judgment of 17/3/2026, this court is not able to conclude that there is overwhelming chances of success in the appeal based on the grounds of inconsistence and or contradictions of witnesses as set out in the Petition of Appeal and submissions of the counsel for the applicant, or a failure to consider evidence of frame-up or grudge. 14.The appeal must be urged in the usual way with aid of the true record of the trial court on the evidence before a decision may be reached on the appeal from conviction. A case may be established by circumstantial evidence and there is nothing unusual or exceptional, if an offender is convicted on circumstantial evidence. It need only be tested with great care and supported by corroboration so that the Court determines that the facts are inconsistent with the accused’s innocence and incapable of explanation by any other possessions. See R. v Kipkering (1949) EA 135. 15.The Prison authorities have not indicated that they are unable to deal with applicant’s injuries and medical needs while in prison. 16.The circumstances of the injuries of the applicant are subject of another criminal trial and the matter is not before this court for consideration at this time. 17.In conclusion, the Court is not able on the material before the court to determine that there are any exeptional or unusual circumstances in the appeal, by way of overwhelming chances of appeal or by the applicants medical condition as to justify grant of bail pending appeal, being in mind that alleged past good character of an offender is not an exceptional circumstances. Order 18.Accordingly, for the reasons set out above, the Court finds no merit in the application for bail and it is dismissed. 19.The appeal shall be listed for full hearing upon preparation of the Record of Appeal. 20.Mention for directions on 22/9/2026Order accordingly. DATED AND DELIVERED THIS 23RD DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAppearances:Mr. Rai for ApplicantMr. Mwangi for DPP/Respondent.