https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1647

Cohen v Republic (Criminal Application E050 of 2025) [2026] KECA 1647 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1647 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E050 of 2025 PO Kiage, J Mohammed & WK Korir, JJA July 31, 2026 Between Sarah Wairimu Kamotho Cohen Applicant and Republic Respondent (An application for bail/bond pending the hearing and determination of the trial and intended appeal against the ruling of the High Court of Kenya at Nairobi (Kavedza, J.) dated 8th July 2025 in HCCR No. E001 of 2025) Ruling 1.The applicant Sarah Wairimu Kamotho Cohen states in the affidavit in support of the motion dated 28th July 2025 that she is currently remanded at the Langata Women’s Remand Prison pending her trial for murder in Kibera HCCR No. E001 of 2025. She has made several applications to be admitted to bail/bond but they have all been denied by the trial court. The latest such denial was through a ruling delivered by the High Court at Kibera (Kavedza, J.) on 8th July 2025 which dismissed her latest plea on three principal grounds, being;“a)That there is a high likelihood that the applicant will interfere with witnesses.b)That the applicant is a flight risk.c)That there is a high likelihood that the applicant will interfere with the crime scene.” 2.Aggrieved by that ruling, the applicant has preferred an appeal to this Court. She has, in the meantime, filed the aforesaid motion in which she seeks order as follows;“… 2)That this honourable court be pleased to set aside the ruling delivered on 8th July 2025 by Honourable Lady Justice Kavedza in Kibera HCCR No. E001 of 2025, Republic v Sarah Wairimu Kamotho Cohen. 3)That initially pending the hearing and determination of this application and thereafter pending the hearing and determination of the intended appeal against the said ruling, the applicant be admitted to bail/bond on such reasonable terms as this honourable court may deem fit. 4)That in consequent to and or in the alternative to Prayers 2 and 3 above, this honourable court be pleased to expedite the hearing and determination of the instant appeal by the applicant seeking grant of bail pending trial.” 3.The motion is said to be brought under sections 123 & 124 of the Criminal Procedure Code; Articles 20(3) & (4), 21(1), 22(3) & (4); 29(a), 49(1)(h) & 50(2) (a) of the Constitution of Kenya 2020 and Rules 5(2)(a) & 61 of the Court of Appeal Rules. It is supported by grounds appearing on its face as amplified by the applicant’s supporting affidavit aforesaid. The applicant expresses her dissatisfaction with the impugned ruling and states that the learned judge erred in law and fact in a myriad and respects all of which go to show, in the applicant’s view, that the learned judge “wrongly evaluated the evidence on record and misdirected herself as to the material test to be applied in releasing the applicant on bail/bond.” She avers that given the length of time the trial may take, she was effectively condemned to “a minimum of six years imprisonment prior to conviction” in violation of her constitutional rights “without the presence of compelling reasons.” She asserts having a proven and consistent track record of compliance with court directives, including conditions imposed when previously admitted to bail in the related HCCR No. 60 of 2019, and that she is not a flight risk and thus should be admitted to bail. Written submissions were filed in support of the application. 4.The respondent opposed the motion vide a replying affidavit sworn on 23rd August 2025 by Maxwell Otieno, an Assistant Superintendent of Police who swears, inter alia, that the applicant directly and through agents, including her previous counsel, engaged in acts of contacting protected witnesses and interfering with them and with the evidence they were to give at the trial. The respondent is therefore apprehensive that the applicant will threaten other witnesses, some of whom are her former employees. He also swears that the applicant used deceptive means to acquire a new passport to enable her to travel out of the country while her passport was in custody of the investigating officer, which raises a reasonable apprehension that she is a fright risk. 5.Both parties filed written submissions which they highlighted at the hearing of the motion with learned counsel Mr. Gitau Singh appearing for the applicant, while Mr. Monda, the learned Acting Deputy Director of Public Prosecutions represented the respondent. Going first, Mr. Singh gave a brief background of the matter indicating how the applicant had initially been charged with murder in HCCR Case No. 60 of 2019 in which she was released on bail but the Director of Public Prosecutions later entered a nolle prosequi and she was accordingly discharged in November 2022. She moved back to her matrimonial home only to be summoned to the Director of Public Prosecutions’ office on 25th January 2023 and charged afresh, leading to the proceedings now pending at the High Court. He recounted the applicant’s unsuccessful plea for bail following opposition by the prosecution on the basis of alleged interference with, and intimidation of, witnesses in what he saw as a case of loading onto the case issues that were meant to manipulate the court and cause it to be biased against the applicant. He cited various authorities in support of the applicant’s application. 6.Mr. Monda on the other hand submitted that the learned judge correctly applied the principles on denial of bail and asserted that the prosecution did show compelling reasons for denial, especially because the applicant was a flight risk and had also tampered with the scene of crime. According to him, the applicant’s improper possession of two passports, the second obtained by provision of false information, and a history of previous travel showed that she is a flight risk. Further, the applicant never made any application for the learned judge’s recusal on account of alleged bias as none existed. The applicant has not demonstrated the existence of exceptional circumstances to warrant the grant of bail by this Court at this stage, concluded the Ag Assistant Director of Public Prosecutions. He, too, cited authorities. 7.Mr. Singh’s brief reply was that the applicant does have an arguable appeal as bail is a constitutional right and the burden is on the prosecution to show exceptional circumstances to warrant its denial. He reiterated that the applicant is not a flight risk Rule 5(2) (a) of the Court of Appeal Rules, which the applicant has invoked in bringing this application, is couched in the following terms;“(2)Subject to subrule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—a.in any criminal proceedings where a notice of appeal has been given in accordance with rule 61, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal.” 8.A plain reading of the Rule yields the conclusion that an appellant who has filed a notice of appeal, intimating interest to lodge an appeal to this Court, may seek interim relief pending the determination of the appeal in the nature of release on bail or the suspension of the execution of any warrant of distress. It is a rule most commonly invoked for criminal cases where the appellant has been convicted and sentenced to death, imprisonment or some warrant of distress. In the present case, the applicant has not been sentenced as her trial at the High Court is still ongoing. Her appeal is against a refusal of bail by the High Court. Strictly speaking, therefore, there is no sentence to be suspended, nor is there an order made by the court below that is capable of execution. Indeed, in so far as the order made was one of refusal of bail, it is a negative order incapable of execution. 9.The logical consequence of a proper reading of the rule is that unlike where there is an appeal, against conviction, the principles for grant of bail pending appeal as well articulated in a long line of authorities, do not strictly apply. Those principles were stated in the oft-cited case of JIVRAJ SHAH Vs. REPUBLIC [1986] KLR 605 to be the existence of an appeal with overwhelming chances of success, together with exceptional circumstances that would render the continued detention of the appellant/applicant injust. 10.That the grant of bail, though the undoubted right of an accused person, is nonetheless not absolute and may be denied or limited at the discretion of the court upon consideration of compelling reasons advanced by the prosecution as required under Article 49(l)(h) of the Constitution. That being the case, is for an accused person to persuade the Court hearing his appeal against denial of bail that the trial court exercised its discretion in an injudicious or perverse manner within settled principles for interference with a decision lying at the discretion of a judge. It is not the place of a bench of the court hearing an application for bail pending appeal from a refusal of bail to enter upon a detailed enquiry whether or not the trial court had a basis upon which to deny bail. That lies within the jurisdictional remit of the bench of the Court that will hear the appeal. 11.In the case before us, prayer (2) presented by the applicant appears to be misconceived. The applicant asks us at this interlocutory stage to set aside the ruling delivered on 8th July 2025 by Kavedza, J. We cannot do so for the reason that to do so would be to grant the appeal before it is heard. It also seems to us that the prayer (3) must suffer the same fate because it seeks “bail pending the hearing and determination of this application and thereafter pending the hearing and determination of the intended appeal.” To grant that prayer would be to determine the appeal on the question of bail before it is heard. 1.We think that the applicant was fully cognizant of the improbability, if not sheer impossibility, of grant of those two prayers hence the next prayer that beseeches this Court “consequent to and or in the alternative to [those two prayers we have addressed] … be pleased to expedite the hearing and determination of the instant appeal ….” We opine that this is a prayer that is for granting as there is no reason why the appeal, if filed should not be expedited for hearing. 12.In the result, we dismiss the prayer for setting aside the ruling of 8th July 2025 and for the applicant’s admission to bail as they must await the hearing and determination of the appeal, which we direct be processed and heard on expedited basis.Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.P. O. KIAGE…………............ JUDGE OF APPEALJAMILA MOHAMMED…………............ JUDGE OF APPEALW. KORIR…………............ JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR