Ademba v Republic [1983] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it cannot hear appeals against a High Court's refusal of bail pending appeal, so your first application must be done right.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to entertain an appeal from a refusal by the High Court to grant bail to a convicted person pending an appeal in that court
- 2.Whether the learned judge erred in principle in rejecting the application for bail pending appeal
Key legal issues
#Choice of correct statutory provision for bail pending appeal
Counsel applied under the wrong provision; section 379(4) applies to bail pending appeal to the Court of Appeal, while applications for bail pending an appeal in the High Court must be made under sections 356 or 357
The judge had rightly noted the application was made under section 379(4), which empowers a High Court or Court of Appeal judge to grant bail pending the hearing and determination of an appeal from the High Court to the Court of Appeal. The application should instead have been brought under sections 356 or 357 depending on whether the appeal had been entered in the High Court.
Jurisdiction of the Court of Appeal over appeals from refusals of bail pending appeal in the High Court
The court held it had no jurisdiction over such an appeal, drawing on the former Court of Appeal for Eastern Africa's decision in Nemchand Govindi v Reginam
The former Court of Appeal for Eastern Africa held it had no jurisdiction to grant bail pending an appeal to the Supreme Court of Kenya (now the High Court). No decision or legislation was shown persuading the court that it has jurisdiction in an appeal from a refusal of the High Court to grant bail pending an appeal of that court.
Merits of the bail application
The judge below had the right principles in mind: bail pending appeal requires exceptional or unusual circumstances and a probability of success on appeal
The High Court found that although the affidavit showed serious family and personal difficulties, the appeal had no probability or likelihood of success on the face of the record. The Court of Appeal declined to indicate what the result of the intended appeal might be, and held the judge had applied the correct principles in rejecting the application.
Legal principles established
#- Section 379(4) of the Criminal Procedure Code governs bail pending an appeal from the High Court to the Court of Appeal, not bail pending an appeal within the High Court, which falls under sections 356 or 357
- Bail pending appeal may only be granted in exceptional or unusual circumstances, and where the appeal shows a probability or likelihood of success
- The Court of Appeal has no jurisdiction to entertain an appeal from a refusal of the High Court to grant bail to a convicted man pending an appeal in that court
Court orders
#- 1.The appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in judgment
- Jurisdiction invoked
- Section 379(4) of the Criminal Procedure Code (cap 75) and the Court of Appeal's own appellate jurisdiction; the court questioned whether it had jurisdiction at all over an appeal from a refusal of bail pending appeal in the High Court
Relief refused
#Appeal against refusal of bail pending appeal
The Court of Appeal found no jurisdiction over an appeal from a High Court refusal of bail pending an appeal in that court, and the judge had applied the right principles
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Bail pending appeal may only be granted if there are exceptional or unusual circumstances.
The application should have been under sections 356 or 357 according to whether the appellant has or has not entered his appeal in the High Court.
No decision, reported or unreported, and no legislation has been brought to our notice to persuade us this court has jurisdiction in an appeal from a refusal of the High Court to grant bail to a convicted man pending an appeal of that court.
Accordingly, this appeal must be and is dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ademba v Republic [1983] KECA 59 (KLR)", Case Analysis (1983). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/59/eng@1983-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.