https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12772

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI** **CRIMINAL CASE NO E013 OF 2026** **LAWRENCE NJERU……….……………………………..….………… APPELLANT** **VERSUS** **REPUBLIC…………………………………………………………………RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant filed a Chamber Summons application dated and filed on 26th March 2026, and sought an order to admit him to reasonable bail or bond pending the hearing and determination of the Appeal. 2. The application was supported by his Affidavit and Further Affidavit in which he deponed that he complied with all bond terms during trial and that he had already lodged an appeal against both conviction and sentence. He further averred that he was seventy-eight (78) years old and suffered from diabetes and hypertension. He said that his health had deteriorated while in custody. In support of those assertions, he annexed medical records from the prison dispensary and Nanyuki Teaching and Referral Hospital. 3. In opposition to the present application Esther Kimani, Prosecution Counsel, swore a Replying Affidavit on behalf of the Respondent herein, on 25th May 2026 and filed on 29th May 2026. 4. The Respondent was emphatic that the present application was devoid of merit and failed to satisfy the legal threshold for the grant of bail pending appeal. It contended that the grant of bail pending appeal was discretionary and that, following the Applicant’s conviction, the presumption of innocence no longer applied. 5. It added that the Applicant had not demonstrated that the appeal had overwhelming chances of success or disclosed any exceptional or unusual circumstances warranting his release on bail pending appeal. It pointed out that in view of the twenty-year (20) custodial sentence that was imposed, there was no likelihood that the Applicant would have served a substantial part of the sentence before the Appeal was heard and determined. It, therefore, urged this court to dismiss the said application. 6. The Appellant’s Written Submissions were dated and filed on 4th June 2026 while those of the Respondent were dated 15th June 2026 and filed on 16th June 2026. The Ruling herein is based on the said Written Submissions which both parties relied on in their entirety. **LEGAL ANALYSIS** 1. The Applicant submitted that the application was properly before the court under Section 357 (1) of the Criminal Procedure Code, which empowered the court to admit a convicted person to bail pending hearing and determination of an appeal. 2. He contended that he had satisfied the threshold for the grant of bail pending appeal. He averred that his Appeal raised substantial points of law and had overwhelming chances of success. He asked this court to should exercise its discretion in his favour in the interests of justice, while refraining from making findings that could prejudice the substantive appeal. 3. He added that there existed exceptional and unusual circumstances to warrant his release due to his advanced age and ill-health. He averred that the medical conditions that he suffered from required continuous medication, specialised care and appropriate diet, which he said he was unable to access adequately while in prison. He pointed out that he had been admitted to hospital on several occasions since his incarceration owing to his deteriorating health. 4. He relied on the cases of **Criminal Application number 18 of 1986 between Jivraj Shah and Republic (1986) KLR 605, Somo v Republic (1972) E A 476, Daniel Dominic Karanja vs Republic, Peter Hinga Ngatho v Republic and Arvind Patel v Uganda,** for the proposition that bail pending appeal may be granted where exceptional circumstances exist, the appeal demonstrates substantial merit, or the interests of justice so require. 5. He pointed out that he faithfully attended court throughout the trial whenever he was required and was not a flight risk. He told this court that he would will abide by any terms that it would impose if admitted to bail pending appeal. He, therefore, urged this court to allow grant him the order that he had sought in his application. 6. On its part, the Respondent was emphatic that the Applicant had failed to satisfy the well-established principles governing the grant of bail pending appeal. It was categorical that the conviction was sound, the prosecution proved its case beyond reasonable doubt, and the sentence imposed was lawful. 7. It reiterated that after being convicted by a court of competent jurisdiction, the Applicant no longer enjoyed the constitutional presumption of innocence. It argued that bail pending appeal was, therefore, not a constitutional entitlement but a discretionary remedy that was only exercisable in appropriate cases under section 357 (1) of the Criminal Procedure Code. 8. It argued that the Applicant failed to demonstrate that the pending appeal has overwhelming chances of success as the grounds in the Petition of Appeal did not disclose any substantial point of law that was *prima facie* likely to result in the appeal being allowed. It contended that rather, the Appellant raised ordinary grounds that could only be properly determined during the hearing of the appeal. 9. It further submitted that the Applicant’s advanced age, medical condition, previous good character and compliance with bond terms during trial did not, either individually or cumulatively, constitute exceptional circumstances warranting release pending appeal. It contended that these factors had consistently been held by the courts not to satisfy the threshold for bail pending appeal, particularly where appropriate medical care was available within the prison system. It proposed that the Appeal be expedited once the Record of Appeal was prepared. 10. It placed reliance on the cases of **Jivrai Shah v Republic 11986l KLR 605, Francis Kamote Mutua v Republic ll988l eKLR, Somo vs, R I 19721 EA 476, and Dominic Karania v Republic (1986) KLR 612** where the common thread was 11. Notably, the issue for determination was whether the Applicant has satisfied the legal threshold for the grant of bail pending appeal under section 357 (1) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The same provides as follows:- **xxxxxx** 1. It was evident that Section 357 (1) of the Criminal Procedure Code vested the court with discretion to admit a convicted person to bail pending the hearing and determination of an appeal. However, that discretion was not exercised as a matter of right. As the Respondent correctly submitted, once a trial court convicted an accused person, the presumption of innocence ceased to apply. Consequently, an applicant seeking bail pending appeal bore a heavier burden than an accused person seeking bail before trial. 2. Indeed, the principles governing applications for bail pending appeal were now well settled. In the case of **Jivraj Shah vs Republic (1986) KECA 36 (KLR)**, the Court of Appeal held that the court should principally consider whether exceptional or unusual circumstances existed and whether, *prima facie,* the appeal disclosed substantial points of law with overwhelming chances of success. The court further held that the applicant was required to demonstrate that by the time the appeal was heard, the whole or a substantial part of the sentence was likely to have been served. 3. Further, in the case of **Daniel Dominic Karanja vs Republic (1986) KECA 37 (KLR) 612**, the Court of Appeal emphasised that previous good character, family hardship and ill health did not ordinarily constitute exceptional circumstances where appropriate medical facilities existed within the prison system. The court also observed that an applicant’s undertaking not to abscond did not justify release pending appeal. 4. The burden rested squarely upon the Applicant to demonstrate the existence of exceptional circumstances and that the Appeal herein presented overwhelming prospects of success. Mere assertions that an appeal had high chances of success were insufficient. The court had to be able to discern, on a *prima facie* basis, substantial points of law capable of resulting in the appeal being allowed. 5. This court was cautious to find that there was no ground that had raised substantial point of law or fact as delving into the merits or otherwise of those grounds at this interlocutory stage had the potential of prejudicing and prejudging the merits or otherwise of the Appeal herein. That was he province of the court sitting as an appellate court. 6. Although the Applicant had exhibited medical records confirming that he suffers from diabetes and hypertension, those records did not demonstrate that the prison authorities were unable or unwilling to provide appropriate medical treatment. On the contrary, the records indicated that he had been referred to hospital whenever necessary and had received medical attention while in custody. This court was, therefore, unable to conclude that his medical condition amounted to an exceptional circumstance warranting release on bail pending appeal. 7. Equally, while his advanced age deserved compassion, that could by itself justify admission to bail pending appeal. The offence for which he was convicted of was committed when he was already of advanced age. Age alone could not, therefore, amount to an exceptional circumstance sufficient to warrant his release. 8. This court was persuaded to find and hold that having served only a small fraction of that sentence, there was no realistic possibility that he would have served a substantial part of it before the appeal was heard and determined. The Applicant was sentenced to twenty (20) years’ imprisonment on 8th January 2026.This consideration did not, therefore, favour the grant of bail. 9. It is trite law that bail pending appeal remained an exceptional remedy. As was held in the case of **Francis Kamote Mutua vs Republic (1988) eKLR**, the court should not interfere with the execution of a lawful sentence unless the applicant had demonstrated a compelling basis for doing so. The conviction remained valid unless the same was set aside on appeal. 10. Accordingly, having considered the affidavit evidence, the Written Submissions by the respective parties, and the applicable law, this court found and held that the Applicant’s present application did not satisfy the threshold of him being released on bail pending appeal as envisaged in section 357 (1) of the Criminal Procedure Code. **DISPOSITION** 1. The upshot is that the Chamber Summons Application dated 26th March, 2026 is devoid of merit and is hereby dismissed. 2. To expedite this matter, it is hereby directed the lower court file and certified copies of the proceedings be availed forthwith. 3. It is hereby further directed that matter be mentioned on 21st October 2026 to confirm compliance and/or for further orders and/or directions. 4. It is so ordered. **DATED** and **DELIVERED** at **NANYUKI** this **30th** day of **July** 2026 **J. KAMAU** **JUDGE**