https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11595

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL APPEAL NO. E018 OF 2026** **PETER OKAL OPIYO .................................................................APPELLANT** **VERSUS** **REPUBLIC ............................................................................RESPONDENT** **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies for the State** **RULING** 1. Before this Court is Notice of motion dated 22nd day of June 2026, expressed to be brought under Article 49 (1) h, 50(2) (a) of 2010 Constitution and Section 357 (1) of the CPC Cap 75. The appellant seeks the following orders: 2. *Spent.* 3. *The Appellant/Applicant be admitted to bail pending the hearing and determination of his Appeal.* 4. *The sentence be suspended pending the hearing and final determination of the Appeal.* 5. *Such other or further order is made as this Honorable court shall deem just and expedient.* 6. The applicationis based on the following grounds: 7. *The Applicant was convicted on 17th June 2026 over charges of Robbery with violence Contrary to section 296 (2) of the Penal Code.* 8. *The applicant was then sentenced to 10 years in prison.* 9. *The Applicant has filed the appeal herein against the said judgment on both conviction and sentence.* 10. *The appeal has overwhelming chances of success as it raises substantial points of Law.* 11. *The Appellant may end up serving a substantial part of the sentence imposed upon him before the appeal is heard and finalized.* 12. *The Appellant is a father, a husband and the sole bread winner of her young family and as such it would be of great prejudice to the applicant’s family of this application is not allowed.* 13. *The applicant prays for a chance to have this appeal heard and determined as he is outside jail in order also to be able to present his case well.* 14. *All the while during the pendency of the lower court case, the applicant has been in line and compliance with the terms of the bond where he has never missed any court session.* 15. *The Applicant has a fixed place of abode in Kisumu County.* 16. *The Applicant is ready, able and willing to adhere to and or abide by any such reasonable terms and conditions as the court shall impose.* 17. *Whereas the Appellant is serving sentence, it will be an injustice if he serves for a long time and this court finally allows this appeal.* 18. *That exceptional circumstances exist to warrant the Appellant to be admitted to bail pending appeal.* 19. In support of the application is the sworn affidavit of Peter Okal Opiyo whop deponed as follows:- 20. *THAT I am the Applicant herein and I am knowledgeable about the facts of this application hence competent to swear this affidavit.* 21. *THAT I was convicted on the 17th June 2026 on the offence of Robbery with Violence C/S S296 (2) of the Penal Code.* 22. *THAT out of the said offence, I was sentenced to 10 years prison through a sentence that was made and delivered on the 11th June 2026. (Annexed hereto and marked POO 1 & a bare copies of the Judgment and CTS extract confirming the sentence).* 23. *THAT I instructed my Advocate on record to file an appeal against the judgement on both the conviction and sentence which he has filed (Annexed hereto and marked POO 2 is the copy of the Petition of Appeal).* 24. *THAT I have been advised by my Advocate on record which advice I verily believe to be true that owing to the evidence on record, the learned trial Magistrate erred both in law and fact in convicting me on the grounds that have been set out on the Petition of Appeal filed herein.* 25. *THAT I have been advised by my Advocate on record which advice I verily believe to be true that the appeal has overwhelming chances of success as it raises substantial points of Law.* 26. *THAT from the Pre-Sentence inquiry report, the same was and is positive since it portrays me as a responsible man as I have been before this issue began. (Annexed hereto and marked POO 3 is a copy).* 27. *THAT I have a family with children and extended family members who will be adversely affected with my continuous incarceration.* 28. *THAT I have fixed place of abode in Kisumu County and if released on bond I will ensure that I abide by the conditions given to me.* 29. *THAT have throughout the lower court hearing fully abided by the set bond terms and never interfered with witnesses.* 30. *THAT I am ready, able and willing to adhere to and or abide by any such reasonable terms and conditions as the court shall impose.* 31. *THAT I am now serving sentence and it will be an injustice if I serve for a long time and this court finally allows my appeal.* 32. *THAT I have been advised by my Advocate on record which advice I verily believe to be true that exceptional circumstances exist to warrant me to be admitted to bail pending appeal.* 33. *THAT I swear this affidavit in support of my application herein.* 34. *THAT whatever is deponed to herein is true to the best of my own knowledge save as to matters on information and believe and sources whereof have been stated.* 35. The application was canvassed by way of written submissions in which learned counsel relied on the constitutional provisions under Article 49(1)(h), 50 (2)(a) of the same constitution and buttressed with the principles in the case of *Samuel Macharia Njagi vs R [2013]eKLR*, *Archbold criminal Pleading, Evidence and Practice, Sweet & Maxwell 2002 para 7-188, Francis Macharia Nzeki alias Macha vs Republic [2021] eKLR, Isaac Mutie Nthenge vs Republic [2019] eKLR and Samuel Macharia Njagi vs Republic [2013]eKLR and Pauline Ruguru Kithumbi vs Republic [2019]eKLR and Arvind Patel vs Republic [2003] UGSC 24.* In summary learned counsels was of the strong view that if the court examines the principles as articulated in the above authorities it would find favour with eth application by granting of remedy of bail pending appeal. the respondent learned prosecution counsel by the time of authoring this ruling as yet to file his rejoinder submissions. **Decision** 1. The operative provision on this subject matter happens to be Section 357 of the CPC which provides as follows: *Admission to bail or suspension of sentence pending appeal* * 1. *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: Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.* 2. *If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.* 3. *The Chief Justice may make rules of court to regulate the procedure in cases under this section.”* 1. It has been observed while considering the scope of Section 357 of the CPC the following case law as indicated factors that required to be considered by an appeal’s court while granting the benefit under the aforesaid provisions. Thus it is useful to refer to the observation made herein in the cited cases by the superior courts, the Court of Appeal in *Ademba vs Republic [19830] eKLR* where the Court of Appeal held that; *“……bail pending appeal may only be granted if there are exceptional or unusual circumstances. The likelihood of success in the Appeal is a factor taken into consideration in granting bail pending appeal is a factor taken into consideration in granting bail pending appeal..”* Also, in *Dominic Karanja vs Republic (1986) eKLR*, it was held that; *“(a)The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.(b)The previous good character of the applicant and the hardships if any facing his family were not an exceptional circumstance where there existed medical facilities for prisoners;(c)A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.”* 1. It must be remembered that Section 357 of the Code deals with suspension of execution of sentence pending the appeal and release of appellant on bail. There is a distinction between bail and suspension of sentence. One of eth essential ingredients of Section 357 is the requirement of the appellant court to record reason in writing for ordering of suspension of execution of sentence or order appeal against. If he/she is in confinement the said court can direct that he/she be released on his/her own bond. The requirement or recoding reason in writing clearly indicates that there has to be careful consideration of the relevant aspects and the orders directing suspension of sentence and grant of bail pending appeal should not be passed as a matter of routine. An Appellate Court like the one I am presiding over is duty bound by law to objectively assess the application including the overall record of the trial court and on being satisfied in one way or another record reason for the conclusion that the case at hand is pending an appeal but it warrants suspension of execution of sentence and simultaneously grant of bail with or without a surety. The mere fact that the appellant during the trial in the court below was granted bail is not really of much significance on appeal. it should be understood that the legal effect of bail granted during the pendency of the trial loses significance when an offender has competed trial subsequently found guilty, convicted and sentence to some form of punishment as provided in the penal code or other statute in which parliament has prescribed the offence and applicable sanctions. 2. This is what the court discussed in *Vijay Kumar [Vijay Kumar v. Narendra, (2002) 9 SCC 364], it was held that in considering the prayer for bail in a case involving a serious offence like murder or sexual offences punishable under Section 204 of the Penal Code or Section 8 (2) or (3) of the Sexual Offences Act or Robbery with Violence Contrary to Section 296 (2) of the penal code, the court should consider the relevant factors like the nature of 3 accusation made against the accused or appellant for that manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the appellant on bail after he/she have been convicted for committing the serious offence in question subject matter of intended appeal of murder.* (*underlined emphasis mine*) 3. The court in *Gomti v Thakurdas (2007) 11 SCC 160* also dealt with the provisions of Section 389 of the Indian Criminal Code with similar provisions under our Section 357 of the CPC be reiterate as follows: *33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.”* 1. In the instant application, the jurisprudential question which arise on to influence exercise of discretion of a Judge have been adequately answered in a sample of the following cases. Thus in *ISAAC MUTIE NTHENGE –VSREPUBLIC [2019] eKLR and SAMUEL MACHARIA NJAGI –VS- REPUBLIC [2013] Eklr*. Where The Learned Court Said: *“The principles for admission to bail pending appeal in Kenya have for over 40 years been clustered around the decision in Somo -vs- Republic [1972] E.A 476. According to this case the applicant must demonstrate the existence of overwhelming chances of success. The applicant ought to be in a position to persuade the court that his or her appeal is so strong, so meritorious, that at the end, the probabilities will favour acquittal. To discharge this burden, the applicant will need to raise some critical issue of law or an issue as to the mode of application of evidence”.* 1. In so far as the appellant is concerned he has placed before Court the following mitigating circumstances which should contribute towards this Court extending compassion and mercy in the interim period to release him on bail pending appeal: 2. *He is 51 years old.* 3. *He is the sole bread winner of his family where he has six children.* 4. *All his extended family members are depend on him (his parents are all elderly)* 5. *He has never been found or convicted of any offence.* 6. *During the pendency of the case at the trial court, the applicant never missed to attend court.* 7. *If granted bond, he has known residence.* 8. *He is ready to comply with any conditions set for him admission to bond.* 9. *He will be able to defend himself properly if admitted to bond than when confined in the cells.* 10. *He respects the court and the rule of law.* 11. *The Pre-Sentencing report was in his favor*. 12. It is also relevant to appreciate the principles in *Arvind Patel vs Republic [2003] UGSC 25* in which the Court made the following observations on matters of bail pending appeal: * 1. *The character of the applicant;* 2. *Whether he/she is a first offender or not;* 3. *Whether the offence of which the applicant was convicted involved personal violence;* 4. *The appeal is not frivolous and has a reasonable possibility of success;* 5. *The possibility of substantial delay in the determination of the appeal.* 6. *Whether the applicant has complied with bail conditions granted after* *the applicant's conviction and during the pendency of the appeal (if any).* 1. In my view, the object of any imprisonment is to punish the offender is a mark of society disproval of his conduct. It is importance to bear in mind that in an application for bail pending appeal, the Court’s dealing with a convict and sufficient reason must therefore exist before such a convict can be released on bail pending appeal. Am being told by the appellant that during the period he was processing his trial before the Trial Court he did not breach the bail condition in that Court below therefore, it is a good ground for this Court to factor or taking into account in exercising discretion to allow the application. In my considered view, this is not an exceptional circumstances or reason which can warrant to admit the Applicant to bail pending appeal. Taking into consideration that criminal appeals at Vihiga High Court are being disposed off at a fast rate, it is unlikely that the Appellant would serve a substantial remainder of his sentence or that he would serve the full sentence before his appeal is determined. 2. This is a matter of judicial discretion weighing the scale of justice and competing interests of both parties and society as a whole. I consider judicial discretion as the exercise of judgment performed by a Judge in making a choice among a closed list of alternatives in which there is no prevalence of one alternative against another. In both analogical and deductive reasoning and the features of this application, both accounts of what the appellant has shared with the Court are mutually exclusive as a result of which I find that the application to suspend sentence and release the appellant to bail pending appeal lacks merit and the same is dismissed forthwith to pave way for the record of appeal to be filed and the appeal fast-tracked by this court in the new term. 3. As a consequence of the above orders, firstly, the Deputy Registrar working with both the prosecution counsel and Learned Counsel for the appellant shall cause the extract of the record of appeal to be shared forthwith for purposes of having the appeal heard and determined with expediency. Secondly, the appeal by this ruling shall be deemed to be have been admitted for hearing inter-partes. Thirdly, the appeal shall be canvassed by way of written submissions in which learned counsel for the Appellant has been allocated 21 days from today’s date. Fourthly, thereafter Learned Prosecution counsel shall move to file his rejoinder submissions on the interlocking issues on the appeal as pleaded by the appellant within 21 days of being served with instruments. Fifthly, their shall be highlighting of submissions on the 17th of September 2026 and to fix the judgment date. **DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**