Oketch v Republic (Criminal Appeal E037 of 2026) [2026] KEHC 6622 (KLR) (15 May 2026) (Ruling)

Oketch v Republic (Criminal Appeal E037 of 2026) [2026] KEHC 6622 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6622 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E037 of 2026 M Thande, J May 15, 2026 Between Stell Akinyi Oketch Appellant and Republic Respondent Ruling 1.By an Application dated 9.4.26, the Appellant seeks to be to bail pending the hearing and determination of the appeal herein. In the alternative, she seeks that the sentence imposed upon him in MCCR Case No. E510 of 2024 be suspended pending the hearing and determination of this appeal. The Appellant averred that she was convicted of the offence of trafficking in narcotic drugs contrary to Section 4 of the Narcotic Drugs and Psychotropic Substances Control (Amendment) Act, 2022. Following conviction, the Appellant was sentenced to pay a fine of Kshs. 268,000/= and in default serve 2 years imprisonment. In addition, she was sentenced to 18 months imprisonment. 2.The Appellant further averred that her appeal is meritorious with high chances of success; that she is a Kenyan citizen with a known residence and family; that she is a middle aged single mother of 6 children aged between 4 years and 16 years who are currently under the care of neighbours and good Samaritans; that she operates a small scale business and is the sole bread winner and responsible for parental care, shelter, food and education for the said children; that she also has the responsibility of taking care of her ailing and aged mother; that she was released on bond during trial and never absconded but attended all court sessions; that if released on bond, she will comply with all conditions that may be imposed on her. 3.The Appellant further stated that her appeal will take a significant period of time and she will have served a substantial part of the sentence by the time the appeal is heard and determined; that owing to the period of sentence, the appeal might be rendered an academic exercise if bail is not granted. 4.The Application is opposed by the Respondent, vide grounds of opposition dated 20.4.26. The grounds are that the Appellant has not demonstrated the existence of exceptional or unusual circumstances to warrant the grant of bail pending appeal; that the Appellant has not demonstrated that the appeal has overwhelming chances of success; that the Appellant was duly convicted and sentenced by a competent court and the conviction remains valid until set aside on appeal; that the mere allegation of delay does not constitute sufficient ground for grant of the orders sought and that it has not been demonstrated that the appeal will not be heard within a reasonable time or that a substantial portion of sentence will have been served. The Respondent urged that the Application be dismissed. 5.The law empowers this Court to consider and if persuaded, grant bail pending appeal. Section 357 of the Criminal Procedure Code makes provision for admission to bail or suspension of sentence pending appeal. Subsection (1) provides as follows: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. 6.The orders sought by the Applicant are discretionary. The right to bond or bail or bond guaranteed under Article 49(1)(h) of the Constitution is specifically for an arrested person pending a charge or trial. This right is not available to a person convicted and sentenced after trial. This was the holding in Masrani v R (1960) EA 321 where the Court of Appeal stated:Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction. 7.In the case of Jivraj Shah v Republic [1986] eKLR the Court of Appeal articulated the principles to consider in an application for admission to bail pending appeal as follows:There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. 8.Flowing from the above, it can be seen that there are 3 considerations in an application for bail pending appeal. First, the existence of exceptional or unusual circumstances and that such circumstances lead the court to fairly conclude that it is in the interests of justice to grant bail. Second, conditions for granting bail will exist if it appears prima facie from the totality of the circumstances that the appeal is likely to be successful. Lastly, that the sentence or substantial part of it will have been served by the time the appeal is heard. 9.In cases where bail is sought after conviction and pending appeal, the onus is on the Applicant to demonstrate the existence of exceptional or unusual circumstances or such circumstances as would lead this Court to fairly conclude that it is in the interests of justice to grant bail. 10.In her affidavit in support of the Application, the Appellant averred that she is a single mother and the sole bread winner of her 6 children and care giver of her ailing and aged mother. She did not however place any evidence before the Court to support this claim. No particulars of the children were given such as names and respective ages and name of the mother were provided. In any event, the fact of family members depending on her does not constitute exceptional or unusual circumstances to warrant the grant of the orders sought. 11.On probability of success of the appeal and why justice requires that she should be granted bail, the Applicant has not placed any material before the Court to demonstrate this. All she stated was that her appeal is meritorious with high chances of success. She has also not demonstrated that justice requires that she should be released on bail. 12.The Applicant was sentenced to 2 years imprisonment on 30.3.26. She has already filed her appeal. As such, by the time the appeal is heard and determined, the sentence or substantial part of it will not have been served. 13.The critical difference between bail pending trial and bail pending appeal is that a person seeking bail pending appeal lacks the presumption of innocence that is guaranteed under Article 50(2)(a) of the Constitution. Such person is already convicted and serving sentence, as in the case before me and the likelihood of absconding is very high. 14.In the end and in view of the foregoing, I am not persuaded that there exist any exceptional or unusual circumstances to warrant the grant of bail pending appeal. Accordingly, the Application is hereby declined. DATED AND DELIVERED IN MALINDI THIS 15TH DAY OF MAY 2026M. THANDEJUDGE