https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1368

Omar v Republic (Criminal Application E021 of 2025) [2026] KECA 1368 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1368 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E021 of 2025 PO Kiage, S ole Kantai & LK Kimaru, JJA July 10, 2026 Between Osman Abdi Omar Applicant and Republic Respondent (An application for bail/bond pending appeal against conviction and sentence of the High Court of Kenya at Nairobi (Mwamuye, J.) dated 17th December 2024 in Criminal Appeal No. E021 of 2024) Ruling 1.The motion before us dated 20.3.25 seeks an order that the applicant, Osman Abdi Omar be granted bail pending the hearing and determination of an intended appeal from the orders of the High Court at Nairobi (Mwamuye, J.) made on 17.12.24. Those orders were issued apparently without reference to the ruling and order of Nzioka, J. made on 25.7.22 in High Court consolidated Criminal Revision No(s) E071, 409 and 413 of 2021 involving the applicant herein and other co-respondents therein. Nzioka, J’s ruling revised the sentence that had been meted on the applicant and his co-accused by the Chief Magistrate’s Court presided over by Hon. C.M. Njagi (SRM) and, fatefully enhanced as follows the sentences that had been imposed by the said Magistrate’s Court;“b)The sentence meted out upon the 2nd respondent in the second application:i.1st count; to pay a fine of Kshs.1,000,000 in default to serve three (3) years imprisonment is set aside and substituted with a fine of; Kshs.10,000,000 in default to serve a term three 3 years imprisonment.ii.2nd count: Kshs.250,000 or in default serve three (3) years imprisonment is set aside and substituted with a fine of Kshs.10,000,000 in default serve five (5) years imprisonment.” 2.In the subsequent judgment of Mwamuye, J., and which appears to be the subject of the intended appeal, the applicant’s challenge to the conviction and sentence was dismissed. 3.The motion before us has grounds on its face which seem to misapprehend and misrepresent the procedural history of the matter by conflating the separate decisions of the High Court as follows;“a.The applicant has been tried and convicted on his own plea of guilty after negotiating plea agreement with the Office of the Director of Public Prosecutions (ODPP). He was sentenced to pay a fine by the Trial Court.b.Being dissatisfied with the judgment and the sentence, the complainant sought a review of the sentence vide HCCR REV. E409, E413, E071 of 2021.c.In a ruling dated 25th July 2022, the High Court revised the sentence and enhanced sentenced meted on the applicant in a ruling delivered on 25th July 2022.d.Being dissatisfied with the ruling, the applicant filed an appeal at the High Court vide HCCCE E021 of 2024 and in a judgment delivered on 17th December 2024 by Hon. Bahati Mwamuye, the High Court dismissed the appeal.e.The applicant being dissatisfied with the judgment and sentence of the High Court, lodged a notice of appeal dated 27th December 2024. However, despite many reminders and inquiries, the record of appeal had not been prepared yet.f.The intended appeal raise exceptional point of law and has high chances of success.g.Given the time it will take to hear and determine the appeal and the nature of the sentence, if successful the intended appeal will be rendered nugatory.h.The applicant has a medical condition of haemorrhoids and ulcers that require him to see a specialist for treatment. He is also Asthmatic on Ventolin, Foralin inhalation and occasionally suffers Asthmatic attacks when exposed to dust, cold and smoke.i.The applicant’s health condition has deteriorated in the last six months and there is likelihood of the condition worsening if he continues to be under custody.” 4.The motion is also supported by the affidavit of Ahmed Haye, the applicant’s learned counsel sworn on 20.3.25, which basically restates the foregoing grounds, and a supplementary one, sworn on by the same deponent. The patent confusion notwithstanding, there is no doubt as to the nature of the application itself. 5.At the hearing of the motion we were informed by the learned Prosecuting Counsel, Ms. Vitsengwa that the Republic was not opposed to the application for bail pending appeal. She referred to the Republic’s submissions dated 28.10.25 under the hand of O.J. Omondi the learned Senior Assistant Director of Public Prosecutions, which were to the effect that;quoteThe appeal before the court raises very valid, weighty and tangible matter of law going beyond the mere interpretation of the applicability, the import of tenor, the purview or scope of section 137 A-N of the Criminal Procedure Code and how the trial court are supported to promote the exercise of judicial authority under Article 159(1) (c) .” 6.The Republic stated the applicable principles in an application for bail pending appeal to be those stated in three decisions of this Court namely; Dominic Karanja Vs Republic [1986] KLR 612, Jivraj Shah Vs. Republic [1986] KLR 605 and John Koyi Waluke Vs. Republic Criminal Application No. E126 of 2023. 7.Those decisions, alongside Epungure Ekai Vs. Republic Criminal Appeal No. E015 of 2021, KOSGEI Vs. REPUBLIC [2024] KECA 148 (KLR) and KABUTHI Vs. REPUBLIC [2024] 1025 (KLR) cited by the applicant, are all to the effect that bail pending appeal is granted where it is shown that an appeal has overwhelming chances of success so that there is no justification for depriving him of his liberty, as well as the existence of unusual or exceptional circumstances. 8.Both sides urge us, and we cannot but agree, that the two considerations stand satisfied in the instant case. The conviction of the applicant was entered on his plea of guilty following a plea bargain. The major complaint, as we understand it, is that a plea bargain ought to lead to a more lenient sentence, and that did not occur herein. This explains the Republic’s insistence that there is need for an authoritative judicial pronouncement on the place and purview of section 137 A-N of the Criminal Procedure Code on plea- bargaining. We think that this is an issue that presents the prospect of overwhelming success on appeal. 9.With regard to unusual or exceptional circumstances, we think that whereas ill health per se may not have sufficed, the appellant is staring at a very real prospect of serving the entire or a substantial part of his term of imprisonment before his appeal gets to be queued for hearing. That, we think, would be highly prejudicial to him and would stultify the appeal. The fact that the prosecution conceded to the application is another factor that persuaded us to find the applicant’s favour. 10.Being of that view, we think a case is properly made out for the applicant to be admitted to bail pending appeal and we so order. The terms shall be as those first imposed by the trial court.Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 10TH OF JULY, 2026.P. O. KIAGE...............JUDGE OF APPEALS. ole KANTAI...............JUDGE OF APPEALL. KIMARU...............JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR