https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11744

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL APPEAL NO. E011 OF 2026** **JOHN OUMA WERE………………….……………………..APPELLANT/APPLICANT** **VERSUS** **REPUBLIC…………………………………………………………………...RESPONDENT** ***(Being Appeal from Judgement of Hon. Nichodemus N. Moseti, Principal Magistrate, in Hamisi Principal Magistrate MCCR/E656 of 2024 delivered on 10.4.2026)*** **Coram: Justice R. Nyakundi** **RULING** 1. Before this Court is a Notice of Motion dated 28th May 2026, expressed to be brought under Articles 357(1) Of the Criminal Procedure Code Cap 75, Laws of Kenya, Article 38, 159(2) of The Constitution of Kenya and other enabling provisions of law. The 2. *Spent.* 3. *THAT the Honourable Court be pleased to admit Vihiga High Court Criminal Appeal No. E011 of 2026 for hearing.* 4. *THAT the honourable Court be pleased to call for Court file for Hamisi MCCR/No.E656 of 2024 to the high Court for purposes of disposal of Appeal filed by Appellant.* 5. *THAT the Honourable Court be pleased to suspend sentence and admit the Appellant to Bond pending Appeal.* 6. *THAT pursuant to Orders 1, 2 and 3 above the Honourable Court be pleased to admit the Appellant to bond pending hearing and determination of the Appeal herein filed.* 7. *THAT this Honourable Court be pleased to issue all such orders as it deems fit to grant in the circumstances of the case and in the interest of justice.* 8. The application is based on the following grounds: 9. *THAT the Appellant/Applicant was convicted on 09.04.2026 in the Principal Magistrate’s Court, Hon. Nicodemas N. Moseti sentenced to serve 6 years.* 10. *THAT the Appellant is a young adult who has just started his life and soul bread winner in a family of 10 siblings* 11. *THAT the Record of Appeal is ready and shall be filled within 14 upon admission of the appeal awaiting this Court’s directions as to hearing.* 12. *THAT the Grounds in the Petition of Appeal raises serious and weighty issues of Law which are arguable and hence high chances of a successful appeal against Conviction and or sentence meted against the Appellant.* 13. *THAT there will be no prejudice if the Appellant were to be admitted on bond since during trial he had been admitted on bond and had obeyed all the directions given by the Court.* 14. *THAT no prejudice will be suffered by the Respondents if a quick disposal were to be granted.* 15. *THAT the Appellant’s Advocate has already prepared draft Submissions on the grounds and Law in respect of the Petition of Appeal and subject to this Court’s directions would serve the Prosecution within the timelines this Court Orders.* 16. *THAT for all purposes and intent, and in the spirit of expeditious disposal of cases, the Appeal is ready for determination once admitted and directions given on hearing.* 17. In support of the application is the sworn affidavit of Wycliffe Ouma Okutta deponed as follows: 18. *THAT I am the Advocate for the Appellant herein.* 19. *THAT I did conduct this matter on behalf of the Appellant in the Lower Court and hence am familiar with it.* 20. *THAT I am aware that on 01.4.2026 the Appellant was convicted and sentenced to 6 years imprisonment.* 21. *THAT the Appellant has preferred an Appeal against the conviction and sentence and has already prepared a Record of Appeal and served same upon the Office of the Director of Public Prosecutions and it is only awaiting admission for hearing. see annexed copy of Record of Appeal dated 20.4.2026 and marked as W.O.O-1.* 22. *THAT the Appeal filed has high chances of success as it raises weighty issues as contained in the Grounds of the Petition of Appeal .(see annexed copy of Petition of Appeal dated 20.4.2026 and marked as W.O.O-2).* 23. *THAT I know of my own that during trial the Appellant had been admitted on Bond terms and he fully complied with all directions given by Court as to Appearances and did not abscond.* 24. *THAT I am also aware that on conviction on 01.04.2026, the Appellant’s bond was cancelled and he has been in jail serving sentence.* 25. *THAT the Appellant has Instructed me to plead with Court to release him on bond pending hearing and determination of Appeal. which was timely filed.* 26. *THAT in the alternative and without prejudice he has instructed me to plead with the Court to admit the Appeal and set it down for disposal because the Record of Appeal has already been prepared and served and waiting for further directions from this Court.* 27. *THAT the Appellants entirely relies on the grounds of the Petition of Appeal filed and the Record of the Lower Court.* 28. *THAT we do plead on behalf of the Appellant that this Honorable Court be pleased to release him on bond pending hearing and determination of Appeal filed and or be admitted to ball pending determination of Appeal.* 29. *THAT from the time the Appellant was convicted and his bond cancelled to date, his health condition has greatly deteriorated as he is sickly and also for the facts that he is a young adult who is 35 years old.* 30. *THAT the Appellant is the only son to his mother and the sole bread winner who stays with his mother and has been the one taking care of his mother at home.* 31. *THAT from the proceedings and evidence adduced, the Appellant was an innocent passenger in motor vehicle whose owner and driver were never arrested he is a victim of circumstances.* 32. *THAT the Appellant has demonstrated that he is not a flight risk as he has always complied with Court directions as regards to attendances in Court.* 33. The Appellant is aggrieved with the judgment of the Court below and his prospectus upon which he intends to canvass the appeal is based on the following grounds: 34. *THAT the learned Trial Magistrate erred in Law and in fact in failing to find as a fact that the offence of Trafficking in narcotics as envisaged Under Section 4(a) of the Narcotic Drugs and Psychotropic substances Control Act No. 4 of 1994 had not been established nor proved as against the Appellant and thereby arrived at a wrong conclusion of Law and fact that the Appellant was guilty as charged to the detriment of the Appellant.* 35. *THAT the learned Trial Magistrate erred in fact and in Law in totally misapprehending the issues for determination in proceedings for offence of Trafficking in drugs by Section 4(a) of Narcotic and Psychotropic substance Control Act No. 4 of 1994 and thereby arrived at an erroneous conclusion of Law.* 36. *THAT the learned Trial Magistrate erred in fact and in Law in failing to make a finding that there was no evidence linking the Appellant to the exhibits produced in Court and thereby lowered the standard of proof in a trial of cases of Criminal nature to the detriment of Appellant by making a finding that he was guilty as charged.* 37. *THAT the learned trial Magistrate erred in fact and in Law in relying on circumstantial evidence in proof of an offence of Trafficking in narcotics against the Appellant and in total disregard of other possibilities absolving the Appellant and thus arriving at wrong conclusion of Law and fact.* 38. *THAT the Learned Trial Magistrate erred in fact and in Law in wholly dismissing the Appellant’s defence without any reason and thereby arrived at a wrong conclusion of Law that he was guilty.* 39. *THAT the learned trial Magistrate erred in fact and in Law in shifting the burden of proof to the Appellant against the dictates and principles of Law and thereby arrived at erroneous conclusion of Law.* 40. *THAT the learned Trial Magistrate erred in fact and in Law in failing to whollistically address the facts adduced at trial and tie same to the applicable Law as expected and thereby misdirecting himself on both the facts and the Law before him for trial to the detriment of the Appellant.* 41. *REASONS WHEREFORE: - the Appellant prays that the honourable Court be pleased to quash the Conviction arrived at by the Trial Court and in place make a finding that Appellant is not guilty as charged and acquit him accordingly.* 42. The application was canvassed by way of written submission in which Learned Counsel laid down a basis underscoring the provisions of Articles 149(1) (h), 50(2)(a) of the Constitution as read with Section 357 of the CPC as a guide for this Court to exercise discretion to admit the Appellant to bail and in the interim order of suspension of sentence pending the outcome of the appeal. It was also the case for the Appellant that already settled principles in the following cases when weighed with facts of his application it is tenable to grant bail pending appeal. The authorities referred to include the following; *Jivraj Shah v Republic [1986] KLR 605, Mohammed Dadi Kokane & Another v Republic [2014] eKLR and Somo v Republic [1972] EA 476*. In his quest Learned counsel argued and submitted that the appeal raises serious points of law and facts and the Court ought to exercise discretion and in the interest of justice to release the Appellant in the interim period pending the hearing and determination of the appeal. **Decision** 1. Bail pending appeal is provided for under Section 357 of the CPC and is underpinned in the following principles: * ***Discretionary Power:****Unlike pre-trial bail which is a constitutional right tied to the presumption of innocence, bail after conviction and pending appeal is granted strictly at the Court's discretion.* * ***Special/Exceptional Circumstances:****An applicant must prove unusual or exceptional circumstances—such as a deteriorating health condition that cannot be managed in custody or an exceptionally delayed appeal process—to merit a favorable exercise of judicial discretion.* * ***Guiding Criteria:****Courts weigh the gravity of the offense, the severity of the punishment, the applicant's past criminal record, and the probability of the applicant surrendering if the appeal fails.* * ***Chances of Success:****The applicant must show that the appeal has a strong or overwhelming probability of success.* * ***Execution of Sentence:****Courts consider whether the sentence is short enough that the applicant might serve a substantial part of it before the appeal is heard and determined* * ***Previous Compliance:****Simply adhering to prior trial bail terms or being a family breadwinner does not automatically count as an exceptional circumstance.* 1. The above core principles were discussed by the Court in the case of Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows: *“(1) The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.* *(2) If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.* *(3) The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”* 1. The Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated 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 exceptional or unusual factors. Ill health per se would also not constitute 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. A fundamental principle of our criminal law jurisprudence is the presumption of innocence which means that a person accused of an offence is presumed innocent until his guilt is established beyond reasonable doubt by a Court of law. Thus an accused person must be treated as a non-criminal until he has been duly adjudged to be so. Therefore, if the Constitution is to be positively interpreted it would mean that an accused standing trial must normally be entitled to bail. 2. The power of the Courts to grant bail pending appeal, is statutory. It is pertinent to note that unlike bail pending trial, the Courts have no inherent power to grant post-conviction bail. 3. I am reminded on the position of the law which has been entrenched in the common law jurisdiction as demonstrated by the decision in *Rex v Theophilus Adenuga Tunwashe (1935) W.A.C.A 236* in which it was stated as follows on the applicable principles in granting bail pending appeal: 4. *That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed* 5. *That in dealing with the latter class of case the Court will have regard not only to the length of time which must elapse before the appeal can be heard but also to the length of the sentence to be appealed from, and further that these two matters will be considered in relation to one another. To put it another way, in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being sewed before the appeal can be heard*. 6. *Where the application is based on ill-health and the applicant cannot get the necessary treatment in the Prisons and refusal of the bail will put the Applicant’s health or those of others in serious jeopardy* 7. *If substantial grounds of law are involved in the appeal, it is useful to see if there is any prospect of success on appeal or where a sentence is manifestly contestable as to whether or not it is a sentence known to the law, bail should be granted* 8. I have given due consideration on this application, grant of bail pending appeal though being a discretion order it however calls for exercise of discretion of this Court in a judicious manner and not as a matter of cause given the position in law that the Appellant has been through a full trial and his/her case has been heard and determined on the merits before a properly constituted Court. While further consideration of this application, one of the key issues whether the key issues has been filed is likely to be heard within the short time possible so that the sentence imposed by the trial Court is not substantially served and if the appeal succeeds it is likely to occasion substantial loss which cannot be compensated by way of damages. The Appellant in this case is sentenced to a term of imprisonment of 6 years and in all circumstance of the case it would be possible to hear the appeal expeditiously at this High Court and therefore the Appellant would not have served the substantial part of the sentence. This is one case which can be placed in the front burner of the case management protocols on appeals and expeditious determination be made on the merit without undue delay. 9. For those reasons I decline to exercise discretion to grant the Appellant bail pending appeal despite his assertion that there might be delays in determining his appeal which is likely to render his appeal nugatory. The application is therefore denied. In the premises the following orders shall follow: 10. *The Appellant to file his record of appeal together with written submissions within 21 days from today’s ruling* 11. *That the appeal so filed be deemed as admitted for hearing and the same be canvassed by way of written submission* 12. *That after compliance by the Appellant in filing the record of appeal and submissions the same shall be shared with the DPP who in turn shall file his submissions within 21 days without fail or default.* 13. *That the final judgment on appeal be and hereby scheduled on 22nd of September 2026. Orders accordingly.* **DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JULY 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**