https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11742

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CRIMINAL APPEALS DIVISION** **CRIMINAL APPEAL NO. E035 OF 2026** **BETWEEN** **PATRICK LUMUMBA ULUNDU ALIAS** **GABRIEL KULONDA ILUNGU ALIAS** **PATRICK LUMUMBA YAFURU---------------------------------APPELLANT** **VERSUS** **REPUBLIC------------------------------------------------------------RESPONDENT** **RULING** 1. The accused person was charged with two counts : **COUNT I :** CONSPIRACY TO COMMIT A FELONY CONTRARY TO SECTION 393 OF THE PENAL CODE LUMUMBA ULUNDU PATRICK ALIAS GABRIEL KULONDA ILUNGU ALIAS LUMUMBA PATRICK BYARUFU; On diverse dates between 7th day of August 2023 and 26th day of December 2023 in Republic of Kenya, jointly with others not before court conspired to commit a felony namely stealing USD one million equivalent to kshs 156,000,000/= from Yingchen[shenzenhen] International trade company limited by falsely pretending you were in a position to sell to the company 84 metric tonnes of Tantalum Niobium ore[Tantalite] ferried in container numbers Segu2490020,Segu3374174 and Temu0281304 a fact you knew to be false **COUNT TWO** OBTAINING MONEY BY FALSE PRETENCES C/SEC 313 OF THE PENAL CODE LUMUMBA ULUNDU PATRICK ALIAS GABRIEL KULONDA ILUNGU ALIAS LUMUMBA PATRICK BYARUFU; On 26th day of December 2023 in Republic of Kenya, jointly with others not before court with intent to defraud obtained USD one million equivalent to KSHS 156,000,000/= from Yingchen Shenzenhen International trade Company Limited by falsely pretending you were in a position to sell to the Company 84 metric tonnes of tantalum niobium ore[tantalite] ferried in container numbers Segu2490020,Segu3374174 and Temu0281304 a fact you knew to be false 1. Following the trial, the appellant /applicant was acquitted in Count I and convicted and sentenced in Count II to pay a fine of Kshs.10 Million and in default to serve 3 years imprisonment. 2. The applicant aggrieved by the decision of the learned Honorable Magistrate filed a Petition of appeal dated 24th June 2026 raising 12 grounds of appeal. 3. The applicant through Mr. Ogado Advocate filed the Notice of Motion dated 26th of June 2026 seeking among other orders that he be admitted to bail pending appeal and that the court makes an order preserving all the exhibits produced at the trial and in particular the monies held in account Number 01022020003853 in the name Mose and Company Advocates at Sidian bank pending the hearing and determination of the appeal. 4. The applicant further sought an order suspending the sentence imposed upon him pending the hearing and determination of the appeal. 5. The gravamen of the applicant’s application was that the appeal raises substantial questions of law and fact that may eventually be resolved in favor of the applicant. 6. The applicant contended that the transaction giving rise to the criminal charges was purely a commercial transaction between the complainant and the applicant and that the firm of Mose and Company Advocates was retained directly by the complainant and had no relationship whatsoever with the applicant. The applicant further argued that the deposit for the purchase price of USD 1 Million was deposited in an escrow account exclusively operated by the firm of Mose and Company Advocates as mandated by the complainant. 7. The applicant further submitted that he never received any of the funds complained of thus in his view the learned honorable magistrate erred in law and fact by convicting him without sufficient evidence to support the charges. The applicant went on to argue that his appeal has overwhelming chances of success thus entitling him to release on bail pending appeal. 8. Mr. Ogado counsel for the applicant further urged the court to consider that the period of imprisonment imposed against the applicant in default of payment fine the Kshs. 10 Million was illegal and that the maximum period of imprisonment permissible in law as a default sentence should not exceed 12 months as per the provisions od Section 28 of the Penal Code. 9. Mr. Mogere counsel for the respondent conceded that the sentence of 3 years in default was illegal and that on that score alone the appellant’s appeal was likely to succeed on the issue of sentence although he was opposed to the appeal on conviction. Mr. Mogere relied on the grounds dated 2nd July of 2026 in opposition to the application. 10. As a result Mr.Ogado urged the court to consider that if indeed the court were to agree that the maximum sentence in default of payment of the fine would not exceed 12 months then it follows therefore that , if the applicant is not released on bail pending appeal, there was every likelihood that he would serve a substantial part of the sentence and for that reason alone the court should be inclined to admit him to bail pending appeal. **ANALYSIS AND DETERMINATION** 1. The law on bail pending appeal, is that an applicant would be admitted to bail pending appeal if he demonstrates that his appeal has overwhelming chances of success, or that he is likely to serve a substantial part of the sentence if not released on bail pending appeal or that there are exceptional circumstances warranting his release on bail pending appeal. 2. The appellate court will however not consider any of the following as exceptional circumstances warranting the release of an applicant on bail pending appeal 3. that the applicant claims he unlikely to abscond once released on bail 4. that the applicant is a first offender or that he is of good character 5. that the applicant’s family is suffering hardships while he remains in prison custody 6. that the applicant suffers mild or manageable illnesses that are treatable or manageable within prison facilities 7. The court of appeal in **Jivraj Shah v Republic [1986] KECA 36 (KLR)** held that : ***“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. The decision in Somo v Republic [1972] E A 476 which was referred to by this court with approval in Criminal Application No NAI 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued. It is almost self defeating to attempt to define phrases or to establish formulae. There is a helpful passage in Archbold, Criminal Pleading Evidence and Practice, 41st Edition page 783, paragraph 7-86.”*** 1. This court has considered the arguments advanced by counsel for both parties as well as the established principles of law that the court must apply in determining applications of this nature. 2. In particular, this court has considered the arguments raised on the legality of the sentence of 3 years imprisonment in default as well as the fact that there is every likelihood that the applicant would serve a substantial part of the sentence before the appeal is heard and determined. 3. In exercising the discretion to grant bail pending appeal, the appellate court must guard against denial of bail pending appeal that would effectively consign the applicant to prison and have him serve a substantial part of the sentence or the whole of the sentence before his appeal is heard and determined. 4. In **Amos Wangombe Wanyiri v Republic [2020] KEHC 4026 (KLR)** the Honorable Lady Justice Wendoh considering an application for bail pending appeal held that : ***“In the end, I do find that the applicant is likely to serve the whole sentence or a substantial part of it before the appeal is heard and is therefore entitled to an exercise of this court’s discretion to grant bond pending appeal. The application is allowed. The applicant may be released on bond of Kshs.150,000/= plus one surety of a similar amount. It is so ordered.”*** 1. Similarly, this court considers that if at the end of the hearing of the appeal the court was to agree with the arguments made by counsel for both parties that the default sentence should not have exceeded 12 months, then it would be in the interests of justice to admit the applicant to bail pending appeal otherwise he may end up serving a substantial part of the sentence before the appeal is heard and determined. 2. Accordingly, this court hereby admits the appellant/ applicant to a bond of Kshs.10 Million plus one surety of similar amount. 3. The applicant shall further deposit his passport with the court and shall not leave the jurisdiction of this court without leave of the court until the appeal is heard and determined. 4. Further, the money held in the escrow account Number 01022020003853 in the name of Mose and Company Advocates shall be held in said account pending the hearing and the determination of the appeal. 5. It is so ordered **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 27th day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Ogado for Appellant/Applicant Ms Njoroge for Muthoni for victim Mr Mogere for Respondent Appellant: Present