https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11771

Olang v Republic (Criminal Appeal E079 of 2026) [2026] KEHC 11771 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 11771 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E079 of 2026 DR Kavedza, J July 30, 2026 Between Jude Olang Applicant and Republic Respondent Ruling 1.The applicant was charged and, after a full trial, convicted on four counts of promoting a sexual offence with a child contrary to section 12(b) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve seven (7) years' imprisonment on each count, the sentences to run concurrently. 2.Aggrieved by both the conviction and sentence, the applicant lodged an appeal and contemporaneously filed the present application dated 11th June 2026 seeking bail pending the hearing and determination of the appeal. 3.The application is premised on the grounds appearing on its face and is supported by the applicant's affidavit sworn on the same date. He contends that the appeal has overwhelming chances of success, that he faithfully complied with the bond terms granted by the trial court throughout the proceedings, is not a flight risk, and undertakes to abide by any conditions that this Court may impose. 4.The respondent did not file any response or submissions in opposition to the application. 5.I have considered the application, the supporting affidavit, the petition of appeal, and the record of the trial court. The sole issue for determination is whether the applicant has satisfied the legal threshold for the grant of bail pending appeal. 6.The applicable law is section 357(1) of the Criminal Procedure Code, Cap. 75, Laws of Kenya, which provides:“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." 7.The principles governing the exercise of that discretion were settled in Jivraj Shah v Republic [1986] KLR 605, where the Court held:“(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)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 argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exist.(3)The main criteria is that there is no 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 and the weight and relevance of the points to be argued." 8.The Court of Appeal adopted a similar position in Somo v Republic [1972] EA 476, where it held:“There is not a set of circumstances which can be regarded as exceptional and each case must depend on its own facts. The most important issue is whether the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty." 9.I have carefully perused the petition of appeal together with the proceedings and judgment of the trial court. Without expressing any concluded opinion that may prejudice the determination of the substantive appeal, I note that the appeal raises substantial and arguable issues relating to the identification evidence upon which the conviction was founded. At this interlocutory stage, it would be inappropriate to undertake a detailed analysis of that evidence or pronounce upon its sufficiency. That exercise is properly reserved for determination at the appellate stage of the case. It is sufficient to state that the grounds advanced disclose substantial points of law and fact which merit full consideration. 10.On the material presently before the Court, and solely for purposes of determining this application, I am satisfied that the appeal discloses substantial merit and carries a high likelihood of success within the meaning of Jivraj Shah(supra) 11.I have also considered the applicant's conduct during the trial. The record demonstrates that he was admitted to bond, attended court whenever required, complied with all bond terms, and there is no allegation that he absconded or attempted to interfere with witnesses. The respondent has equally not placed any material before the Court suggesting that the applicant poses a flight risk or that his release would prejudice the administration of justice. 12.Having considered the totality of the circumstances, I am satisfied that the interests of justice favour the exercise of this Court's discretion in the applicant's favour. The applicant has demonstrated that the appeal raises substantial and arguable issues, particularly on the question of identification, and that it carries a high likelihood of success. Without making any definitive findings on the merits of the appeal, I find that this constitutes sufficient justification for the grant of bail pending appeal. 13.Accordingly, the application dated 11th June 2026 is allowed. The applicant shall be released upon depositing cash bail of Kshs. 100,000 with one contact person. The applicant shall attend court whenever required until the hearing and determination of the appeal.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026............................D. KAVEDZAJUDGEIn the presence of: