https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11743

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CRIMINAL APPEAL NO.E025 OF 2026.** ***(Arising From The Original Records In Criminal Case No.848 Of 2014 Delivered On The 17th Day Of December 2025 By The Hon. P.K. Mutai(C.M) At The Chief Magistrates Court At Milimani)*.** **AND** **(In a Matter of Article 165, Article 49(1),(H) And Article 159(1) & (2) of the Constitution of Kenya 2010 And Pursuant to the Provisions of Sections 356 and 357 of the Criminal Procedure Code).** **BETWEEN** **MICHAEL KIMANI KARIUKI------------------------------------APPLICANT** **VERSUS** **OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS---------------------------------------------------------------------------------------- RESPONDENT** **RULING** 1. The Applicant in this matter was convicted and sentenced to serve 4 years imprisonment for the offence of Conspiracy to Defraud under Section 317of the Penal Code. 2. He was also sentenced to a further two years imprisonment for the offence of Stealing under Section 275 of the Penal Code. 3. The sentences were imposed on 21/1/2026 and they were to run concurrently. 4. The Applicant has since filed an appeal and has been serving his prison term. 5. The Applicant has by way of Notice of Motion dated 11th May 2026 moved this court under Articles 49(1)(h), 159(1) & (2), 165 of the Constitution and Sections 356 & 357 of the Criminal Procedure Codeseeking to be released on bail pending appeal. 6. The Applicant contends that his appeal has overwhelming chances of success and that there are exceptional circumstances in this matter that would justify his release on bail pending appeal. 7. The application was supported by an affidavit sworn by the Applicant on 11th May 2026 and attached to it are annexures marked "MKN 3(a) – 3(l)". 8. One of the annextures is a medical report from AIC Kijabe Hospital dated 30th March 2026. 9. The medical report indicates that the Applicant/Appellant underwent a medical procedure on 26th October 2024 which involved exploratory laparotomy with surgical treatment of the ulcerative stomach tumor and was discharged from hospital on 1/11/2024. 10. The Applicant is thus said to be in need of medical follow-up that would involve a second exploratory surgery. 11. For that reason, Ms Nyaguthie Advocate for the Applicant urged the Court to consider that the prison facilities are not able to provide the necessary medical care required considering the procedure he is scheduled to undergo. 12. Mr. Mogere Prosecution Counsel opposed the application arguing that prisons have medical facilities that can be utilized by the applicant and that he need not be released to pursue treatment in a private facility. 13. Mr. Mogere however informed the Court that on matters surgery, he was not too sure about the adequacy of the prison medical facility. 14. Mr. Mogere maintained that there is no likelihood that the appeal would succeed and that the only viable ground in his view for consideration in deciding whether or not to admit the applicant to bail pending appeal is the exceptional circumstance of illness 15. Ms. Nyaguthie on her part argued that at the hearing of the appeal they will demonstrate that the conviction of the appellant could not be sustained in the face of the evidence tendered. 16. Counsel further contended that the appellant's defence was not considered by the trial Court and that given the position of Applicant in the bank before his arrest and prosecution he will demonstrate at the hearing of the Appeal that he was innocent thus he was improperly convicted. Counsel contended that the appellant will demonstrate that he did not have sole control of the system thus his prosecution was not merited. **ANALYSIS AND DETERMINATION** 1. The law on bail pending appeal is that the applicant/appellant, being a convict, is considered to have lost the presumption of innocence under Article 50(2) of the Constitution. 2. The Applicant is thus under a duty to demonstrate that he has an appeal with overwhelming chances of success or that there are unusual or exceptional circumstances to warrant his release on bail pending appeal. 3. The Applicant may also be released on bail pending appeal if he is able to demonstrate that he is likely to serve a substantial part of the sentence before his appeal is heard and determined.. 4. In **Jivraj Shah v Republic [1986] KECA 36 (KLR)** the court 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 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] E A 476 which was referred to by this court with approval in Criminal Application No NAI 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of overwhelming 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 self defeating to attempt to define phrases or to establish formulae. There is a helpful passage in Archbold, Criminal Pleading Evidence and Practice, 41st Edition page 783, paragraph 7-86.” (emphasis added)*** 1. The applicant in this matter anchored his plea for release on bail pending appeal on the ground of exceptional or unusual circumstance. The exceptional circumstance being ill health and the need for medical care outside the prison that would require the attention of the doctor who had performed the first surgery on him. 2. The court appreciates the argument by Counsel for the State that the applicant could as well be treated at the prison medical facilities but the argument falls on the admission by Counsel that on matters surgery, he cannot guarantee that the prison would be able to handle the applicant's situation. 3. The medical report presented to the Court was prepared by Dr. M. Mwangi a Consultant Surgeon Gastrointestinal Surgeon. The doctor states that the appellant is required to attend outpatient appointments for clinical assessment and diagnostic tests. 4. The doctor also states unequivocally that the applicant requires clinical review to determine the timing of the second operative procedure. 5. The court has not been presented with a contrary medical opinion to indicate that the proposed course of treatment is unnecessary or is the kind of treatment that the prison medical facility would be able to offer. 6. The opinion of an expert can only be contradicted by another expert. The court therefore can only rely on the opinion of Dr. M. Mwangi to determine whether the matter raised by the applicant falls within an exceptional circumstance. 7. Section 48 of the Evidence Act permits the court to rely on expert opinions whenever the court is required to form an opinion on a matter of science. 8. Medical procedures are a specialized field of science that the court cannot form an informed opinion about without the benefit of an expert opinion. In the instant case Dr. Mwangi has offered that opinion which is uncontroverted. 9. In this matter the court only received only one opinion and indeed the court is persuaded that the applicant requires specialist attention to his condition. 10. The court acknowledges that matters of health are matters of life and death and the fact that one is serving a prison term should not be reason enough to expose the convict to a situation that may compromise their health thereby threatening the individual's right to life under Article 26 of the Constitution. 11. A healthy convict is able to serve his sentence without being a bother or unnecessary burden to the prison authorities thus prisoners like everyone else in society should be afforded their rights under Article 43 of the Constitution because the fact of imprisonment does not take away the right of an individual to access the highest attainable standard of health which includes the right to health care services. 12. If the Applicant is able to meet the cost of his own treatment outside the prison facility then the court should not unnecessarily restrict his right to access such medical care. 13. This should be a lived reality of our transformative Constitution under Article 43. Health matters are so serious and so should never be trivialized especially where the state is unable to address certain aspects of health care to prisoners and remandees within the confines of our correctional facilities. 14. The State has reluctantly admitted that the prison authorities may not be able to handle surgeries. The Court entertains serious doubts that the prison facilities have adequate expertise and facilities to handle such procedures given that the court struggles time and again in finding psychiatrists to attend to prisoners and has to send them to other institutions outside the prison. 15. Accordingly, the court finds thattheapplicant has made a case that meets the test of an exceptional or unusual circumstance to warrant his release on bail pending appeal. 16. I therefore grant the Applicant to bail pending appeal on the following terms;- **a).** the appellant is granted a bond of Ksh. 500,000 plus one (1) surety of a similar amount. In the alternative of cash bail of Ksh. 200,000/= to be deposited with the court. **b).** the applicant appellant shall immediately take steps to set the appeal down for hearing. 1. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 20TH day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Mogere for Respondent Ms Nyaguthie for Appellant