https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11840

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL APPEAL NO. E019 OF 2026** **SAMUEL KERITU MBURU………………………..…….…APPELLANT** **VERSUS** **REPUBLIC……………………………………...………….RESPONDENT** **RULING** 1. For the court’s determination is a Notice of Motion dated 18th May 2026 by which the Applicant seeks bail pending hearing and determination of this Appeal, and that the Court does make any other order it deems fit. **Applicant’s Affidavit Evidence.** 1. The Application is propped up by the grounds set out on its face and the Supporting Affidavit sworn by the Applicant. The Applicant avers that he was charged before **Molo Chief Magistrate’s Court in Criminal Case No. E643 of 2023** with the offence of violent robbery contrary to **Section 295 as read with 296(2) of the Penal Code.** After full hearing of the case, he was convicted thereof and sentenced to 10 years imprisonment. 2. Aggrieved by the conviction and sentence, he preferred this Appeal *vide* Memorandum of Appeal dated 18th May 2026 filed herein. He avers *inter alia* that the Appeal raises arguable issues with a high probability of success based on his Memorandum of Appeal exhibited. The Appellant contends that he was never found in possession of stolen property or objects used to commit the robbery. He further states that he has always attended Court when required while out on bond/bail and will continue to do so if released on bail pending conclusion of the Appeal. **Respondent’s Affidavit Evidence.** 1. The Respondent opposes the Application through a Replying Affidavit sworn by **Daniel Wakasyaka** (Prosecution Counsel) on 15th June, 2026. It is deposed *inter alia* that the Appellant’s conviction was based on proper evaluation of evidence tendered and that the sentence meted out against him is also lawful. Mr Wakasyaka further avers that following the Appellant’s conviction the principle of presumption of innocence until guilt is proven, no longer applies. 2. The Appellant is also said to have failed to demonstrate that there are exceptional circumstances warranting grant of bail/bond pending appeal in the interests of justice. According to Counsel, there is nothing showing that the Appeal an overwhelming chance of success. 3. While acknowledging that the Appellant has a right to be admitted to bail pending appeal, Counsel avers that the right is not absolute but discretionary. According to the Prosecution Counsel, merely because the Applicant did not breach bond/ bail terms during the trial process, or that the appeal is arguable is not enough to entitle him to bail/bond pending appeal. **Appellant’s Submissions** 1. Making reference to Case Law in **Charles Owango Aluoch vs Director of Public Prosecutions (2015) eKLR,** Counsel submit that admission of an Appellant to bail for pending appeal is a discretionary remedy exercised judicially depending on the facts and circumstances of each case. Among the factors to consider according to Counsel is whether the Appellant would flee justice if released and whether the appeal has a fair or overwhelming chance of success **(see the Judicial determination in Soit vs Republic (Criminal Appeal E003 of 2006 [2026] KEHC 2680 (KLR) (4 March 2026) (Ruling) among other decisions relied upon by Counsel).** 2. The Appellant's advocates contend that the lower court did not properly consider the Appellant's *alibi* and shifted the burden of proof to the Appellant. It is argued that the Prosecution evidence does not dislodge the Appellant's *alibi* defence. **Prosecution Submissions.** 1. The Prosecution Counsel concurs with the defence Counsel on principles that guide the court in considering an application for bail/bond pending appeal. Counsel, however, submits that the Appellant has not shown that his appeal has an overwhelming chance of success or that there are any exceptional circumstances warranting grant of bail or bond at this stage. In support of this submission, the Prosecution relies *inter alia* on the judicial determinations in **Jivraj Shah vs Republic (1986) KLR 605; Somo vs Republic (1972) EA 476 and Dominic Karanja vs Republic (1986) KLR 612.** 2. The Court is in the circumstances told that there are no good grounds for suspending the lawful sentence meted out against the Appellant. **Analysis and Determination** 1. I have perused the Counsel submissions and the record against the Application before the court. **Section 357** of the **Criminal Procedure Code** is the statutory basis for bail pending appeal and 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.’’** 1. In the cases of **Onyancha vs Republic [2023] KEHC (KLR) and Samuel Macharia Njagi vs Republic [2013] eKLR** it was observed that the Appellant need not satisfy every criterion 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. These principles are reiterated in**Jivrai Shah vs Republic [1986] eKLR** *supra* cited by the Prosecution Counsel. 2. Release of an Appellant on bail pending appeal is at the discretion of the Court as held in the case of **Charles Owanga Aluoch vs Director of Public Prosecutions [2015] eKLR.** The onus is on the Applicant to show why the court’s discretion should be exercised in his favour. In **Chimambhai vs Repubic [1971] EA 343** it was noted 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. 3. 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.”** **Determination** 1. Contrary to the defence submission that the Appellant put up an *alibi* defence in the lower court, the claim is not borne out by the record. It seems that it was the Appellant's co-accused (Samuel Mwangi) who raised this defence through his witness. 2. The victim of the alleged robbery (PW1) testified that he had known the Appellant for 9 (nine) years and that he often fueled his motorcycle in the petrol Station where the witness worked as a guard. The Appellant is also said to operate near the filling station as a "boda boda" rider. PW1 claimed to have recognized the Appellant by voice when he called out his name. The appellant and his companion allegedly attacked him when he went to meet him. 3. In the circumstances the Court cannot reach the conclusion that the Appeal stands an overwhelming chance of success. It is also noted that the offence of which the Appellant was convicted involves personal violence. The Appellant was also only recently convicted and imprisoned and so he may not serve a substantial part before conclusion of the appeal. 4. The Applicant 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. In as much as this court will eventually determine whether or not the conviction is lawful, the right to the presumption of innocence no longer applies unlike in situations relating to arrested persons as per the provisions of **Article 49 (1) (h)** of the **Constitution**. 5. The upshot is that the Application 18th May, 2026 is devoid of merit and is dismissed. **J. M. NANG’EA, JUDGE.** **Ruling dated, signed and delivered this 23rd day of July, 2026** **In the presence of;** **The Respondent’s Counsel, Mr. Wakasyaka.** **The Applicant’s Counsel, Mr Ouma.** **The Applicant.** **The Court Assistant (Jeniffer)** **J. M. NANG’EA, JUDGE.**