https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8504

Okecha v Republic (Criminal Appeal E111 of 2025) [2026] KEHC 8504 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 8504 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E111 of 2025 ACA Ong’injo, J June 5, 2026 Between Bonnscort Okoth Okecha Appellant and Republic Respondent (Being an appeal from the judgment of Hon. C. N. C. Oruo PM delivered on 9th October, 2022 in Rongo SOC No. E022 of 2022) Ruling 1.The Appellant was charged with the offence of defilement contrary to Section 8(1) & (4) of the Sexual Offences Act No. 3 of 2006. 2.The particulars are that the Appellant on the 9th Day of October, 2022 at around 22.30hrs in Rongo Sub-County Kuria East Sub-County within Migori County intentionally caused his penis to penetrate the vagina of EAO a child aged 16 years. 3.Upon consideration of the evidence of 6 prosecution witnesses and the sworn statement of the Appellant, the Trial Magistrate found that the Appellant was guilty of the principal charge and he was found convicted and consequently sentenced to serve 15 years imprisonment. 4.Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide Petition of Appeal dated 23rd October, 2025 on the following grounds:-1.That the Trial Magistrate erred in law and fact by failing to consider the defence of the Appellant.2.That the Trial Magistrate erred in both law and facts by failing to consider the material contradictions in the case of the prosecution3.That the Learned Trial Magistrate erred in both law and facts by failing to consider that there was no corroboration4.That the Learned Trial Magistrate erred in both law and facts by giving excessive sentence of 15 years in the circumstances considering that the Appellant was a first offender. 5.Reasons wherefore the Appellant prayed that the appeal be allowed for the following orders:a.That the conviction be quashed and sentence set asideb.Any other order deemed fit and just to grant. 6.The Appellant also filed application dated 26th January 2026 concurrently with the appeal seeking to be released on bond pending appeal on the ground that his health had deteriorated as he suffers from hypertension and diabetes and that the Complainant was at the verge of the age of majority during the time of the alleged offence as she was 17 years. He also averred that he has an arguable appeal that may succeed. 7.He also averred that during trial he was on bond and he obeyed and respected the terms imposed by the court. 8.The application was opposed by the Respondent’s grounds of opposition dated 5th March 2026 as follows:1.The Application totally lacks merit and does not meet the legal requisite threshold of the orders that it seeks.2.The Appeal filed vide the undated Petition of Appeal does not pinpoint to overwhelming chances of success whatsoever as the evidence tendered by the prosecution is overwhelming, well corroborated and sufficient to warrant the conviction arrived at by the trial court. It does not disclose merit on account of substantial point of law and fact to be argued which could result in the appeal being allowed.3.The Appellant in his application has merely asserted that his appeal has high chances of success without specifically stating the grounds on which he relies on. He has not discharged the burden placed upon him to establish that the appeal has high chances of success or that he is likely to serve a substantial part of the sentence before the appeal is heard and determined.4.There are no exceptional circumstances to warrant such release of the Appellant. The golden thread in the Application is that the victim was 17 years at the time the offence was committed.5.That due to the nature of the offence, the Appellant is convicted of and the sentence imposed, the Appellant's chances of absconding are extremely high.6.That due to the nature of the offence, should the Appellant be let off custody, there is an imminent likelihood of interference with witnesses, hence prejudicial to the victim complainant.7.That bail pending appeal, as sought herein, is discretional as the Applicant's innocence was compromised upon conviction by the trial court, notwithstanding his right to appeal. The Applicant has not demonstrated any peculiar and unusual justifiable circumstances to warrant grant of the orders sought.8.That Justice and public interest demands that the Applicant remains in custody pending hearing and determination of the appeal, and more so because the sentence meted was imprisonment for fifteen (15) years.9.The application lacks merit and the sentence meted out to the Appellant is lenient.10.Hearing of the appeal can be fixed on a priority basis for expedient hearing and determination of the appeal, while the Applicant is still in custody, hence no prejudice to the Applicant for denial of bail pending Appeal. 9.The Respondent’s urged the court to dismiss the application for lack of merit and or compelling reasons for the release. 10.The application was canvassed by way of written submissions. The Applicant’s submissions are dated 2nd March 2026 and are to the effect that at the time of conviction the applicant was sickly, hypertensive and diabetic condition as shown by medical report from the facility where he is currently held, thus being in custody exposes him to a high risk that could be fatal. 11.It was submitted that Section 357 of the Criminal Procedure Code gives this Court the discretion to release the applicant on bond pending appeal.“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 bait with or without sureties, or, if that person is not released on bait, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing and determination of his appeal. " 12.Further that Article 49 (1) of the Kenyan Constitution 2010 provides that;"An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released." 13.The Applicant urged the court to invoke appropriate orders for bond pending appeal. 14.The Respondent’s submissions are dated 16th April 2026 and are to the effect that the Applicant has not demonstrated any exceptional circumstances to warrant his release on bail pending appeal. The reasons advanced are that the complainant was Seventeen (17) Years Old at the time of the incident and the assertion that the bail/ bond pending appeal is his constitutional right. 15.It was submitted that contrary to the Applicant's aversions that appeal had high chances of success, the Memorandum of Appeal does not indicate overwhelming chances of success, as it does not disclose merit on account of substantial point of law and fact to be argued which could result in its success. The Application is pegged on mere assertions of chances of success which have not, in the slightest, been demonstrated. 16.It was further submitted that although bail is a Constitutional Imperative, it is not absolute and the court is under a duty to inquire into broader circumstances of an accused person to avoid rendering the proceedings an academic exercise for the reason of likelihood to interfere with witnesses or whether his own life is at risk. 17.The Respondents also argued that justice is for both parties in any case, the victim of the offence and the accused person. That where the trial is delayed or does not take off because the accused has absconded then no justice is guaranteed for the victim of an offence. It is equally not in the victim's interest when witnesses are interfered with hence being prejudiced. 18.The Respondent cited and relied on the holding of Harris J in Chimambhai Vs. Republic 1971 E.A. 343 where he was of the view that anticipated delay in the hearing of the Appeal could only contribute a good ground of granting bail if taken together with other factors. 19.The holding in Karanja Vs. Republic 1986 KLR 612, was also relied upon where Nyarangi, Platt and Gachuhi JJA, were of the view that the Applicants' good character and the hardships, if any, facing his family were not exceptional or unusual factors. That ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners. 20.Further the Respondent also supported their position with the case of Mutua vs. Republic 1988 1<LR 497t Plattt Apaloo JJA and Masime Ag. expressed similar views as in Karanja's case. They held thus: -“It must be remembered that an Applicant for bail has been convicted by a properly constituted Court and is undergoing punishment because of that conviction tollich stands until it is set aside on appeal. It is not wise to set the Applicant at liberty either from the point of view of ill hea Ith or the state unless there is a real reason zvh!/ the Court should do so." 21.The Respondents concluded that the reasons advanced in support of the Application cannot stand on their own. The revelation that the victim of the Appellants action was 17 years at the time does not hold water and is not an essential consideration in an application of this nature. It was prayed that this court rules that the Application has failed to meet the prerequisite grounds to warrant the issuance of Bail/ Bond pending Appeal. Analysis and Determination 22.Having considered the application, the grounds upon which it is premised and the supporting affidavit; and having considered the grounds of opposition as well as the submissions by the respective parties the issue for determination in the application is whether the Appellant has met the threshold for grant of bail/bond pending appeal under Section 357 of the Criminal Procedure Code. 23.The applicable principles are settled. Unlike bail pending trial, an Applicant seeking bail pending appeal has already been convicted by a court of competent jurisdiction and no longer enjoys the presumption of innocence. The court must therefore be satisfied that there exists exceptional or unusual circumstances warranting release and, most importantly, that the appeal presents overwhelming chances of success or raises substantial points of law likely to result in the appeal being allowed. 24.In the case of Daniel Dominic Karanja v Republic, reported as [1986] KLR 612 the Court of Appeal held that: 25.The most important consideration is whether the appeal has overwhelming chances of success. If the appeal has such overwhelming chances of success, there is no justification for depriving the applicant of his liberty. The minor relevant consideration is whether there are exceptional or unusual circumstances.The Court further held that:1.Previous good character of the applicant is not an exceptional circumstance.2.Hardship facing the applicant's family is not an exceptional circumstance.3.Ill health alone is not an exceptional circumstance where adequate medical facilities are available in prison.4.A mere assurance that the applicant will not abscond, even if supported by sureties, is insufficient. 26.In Francis Kamote Mutua v Republic [1988] KLR 497, the Court of Appeal set out the governing principles for bail pending appeal. The Court held that: 27.The primary consideration is whether the appeal has overwhelming chances of success. If the appeal does not have overwhelming prospects of success, bail pending appeal should generally not be granted.The Court further stated that:“It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal.”1.From the above authorities it is instructive to note that bail pending appeal is discretionary, not a constitutional right as in bail pending trial. The court must consider whether the appeal has overwhelming chances of success or raises substantial points likely to result in the conviction being quashed or sentence substantially altered. The existence of exceptional or unusual circumstances may justify release pending appeal and the fact that the applicant may serve a substantial part of the sentence before the appeal is heard may be a relevant consideration, though not by itself decisive. Since the applicant is already a convicted person, the presumption of innocence no longer applies. 28.From the Petition of Appeal, the Appellant challenges the conviction on grounds that the trial court failed to consider his defence, failed to address alleged contradictions in the prosecution case, relied on uncorroborated evidence and imposed an excessive sentence. 29.At this interlocutory stage, the court is not required to determine the merits of the appeal conclusively. It is only required to ascertain whether the appeal discloses arguable grounds with overwhelming prospects of success. Having perused the judgment and the grounds of appeal as presented, the court is unable to conclude, at this preliminary stage, that the appeal has overwhelming chances of success. The grounds raised largely challenge the trial court's evaluation of evidence and credibility of witnesses, matters that require full interrogation during the hearing of the appeal. 30.The Applicant has further relied on his ill health, stating that he suffers from hypertension and diabetes. While the court appreciates that such conditions require continuous medical attention, the law is settled that ill health, without more, does not constitute an exceptional circumstance where adequate medical facilities are available within the prison system. The Applicant has not demonstrated that the conditions cannot be managed by the prison medical services or through referral to appropriate public health facilities. Consequently, the medical condition disclosed does not amount to an exceptional or unusual circumstance warranting release. 31.The Applicant has also argued that the complainant was nearly eighteen years old at the time of the offence. That contention forms part of the substantive appeal and cannot, standing alone, constitute a basis for grant of bail pending appeal. The offence of defilement under Section 8 of the Sexual Offences Act remains complete so long as the complainant was below eighteen years. 32.The court has also considered the sentence imposed. The Applicant was sentenced to fifteen (15) years imprisonment. The sentence is substantial and there is no indication that he is likely to serve a substantial portion thereof before the appeal is heard and determined. Any apprehension regarding delay can be addressed by giving directions for the expeditious hearing of the appeal. 33.Accordingly, this court finds that the Applicant has not demonstrated exceptional or unusual circumstances, nor has he shown that the appeal has overwhelming chances of success so as to justify the exercise of the court's discretion in his favour. 34.The Notice of Motion dated 26th January 2026 is therefore dismissed. 35.For the avoidance of doubt, the Deputy Registrar shall ensure that the appeal is admitted and listed for hearing on a priority basis at the earliest available date. 36.It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 5th DAY OF JUNE, 2026.HON. ANNE ADWERA- ONG’INJOJUDGEIn the Presence of:Victor – Court Assistant