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Court of AppealAllowedNot stated in the judgment

Jivraj Shah v Republic [1986] KECA 36 (KLR)

Court of Appeal of Kenya
12 November 1986
JNJ.O. NyarangiJGJ.M. GachuhiFAF.K. Apaloo
597 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can get bail while appealing a conviction, but only if you show exceptional circumstances and a strong legal point.

What this practically means

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Executive summary

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This is a single-judgment decision of a three-judge bench of the Court of Appeal, Nairobi, delivered on 12 November 1986 by Nyarangi, Gachuhi and Apaloo JJA, on a notice of motion under Rule 5(2)(a) of the Court's rules seeking bail pending appeal. The applicant had been convicted and sentenced to two years' imprisonment, and his appeal to the High Court at Nairobi was dismissed on 30 September 1986. The grounds advanced were a likelihood of success in the appeal, the likelihood that a substantial part of the sentence would be served before the appeal was heard, ill health, and good character. The court held that the principal consideration for bail pending appeal is whether exceptional or unusual circumstances exist such that it is in the interest of justice to grant bail. Where it appears prima facie that the appeal is likely to succeed on a substantial point of law and that the sentence or a substantial part of it will have been served by the time the appeal is heard, the conditions for granting bail exist. The court approved the formulation in Somo v Republic [1972] EA 476 as adopted in Daniel Dominic Karanja v Republic, holding that overwhelming chances of success do not differ from circumstances disclosing substantial merit in the appeal. It found the question whether there was a 'taking' within section 268 of the Penal Code to be substantial, and observed that the circumstances in which the presiding judge became a complainant raised a serious question whether justice was done and seen to be done. Bail was granted on the applicant's own bond of Kshs 250,000 with two sureties of Kshs 200,000 each, and the applicant's passport was to be deposited with the deputy registrar. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant, whose appeal against conviction and sentence was dismissed by the High Court and who has a further appeal before the Court of Appeal, should be admitted to bail pending the hearing and determination of his appeal
  2. 2.What are the criteria for granting bail pending appeal

Key legal issues

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01

Criteria for admission to bail pending appeal under Rule 5(2)(a)

Holding

Bail pending appeal will be granted where exceptional or unusual circumstances exist; in particular, where a substantial point of law shows the appeal is likely to succeed and the sentence or a substantial part of it will have been served by the time the appeal is heard.

Reasoning

The court surveyed the sparse local authority, noting Somo v Republic as approved in Daniel Dominic Karanja v Republic, where the stated criterion was overwhelming chances of success. It held that this does not differ from circumstances disclosing substantial merit in the appeal which could result in the appeal being allowed. The proper approach is to weigh the particular circumstances and the weight and relevance of the points to be argued, and it is self-defeating to attempt to define phrases or establish formulae.

p. 1
02

Whether the applicant had shown substantial merit justifying bail

Holding

The court found that a substantial point of law existed as to whether there was a 'taking' within section 268 of the Penal Code, and that there was a serious question whether justice had been seen to be done given the presiding judge became a complainant.

Reasoning

The court declined to pre-empt the hearing of the appeal by examining the grounds in detail, but identified the legal question on 'taking' under section 268 as substantial. It also noted the circumstances in which the presiding judge became a complainant against the applicant, observing that this raised a serious question whether justice was done and was seen to be done, which justified exercising the discretion in the applicant's favour.

p. 2

Legal principles established

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  • The principal consideration for bail pending appeal is the existence of exceptional or unusual circumstances making it in the interest of justice to grant bail, including that the appeal is likely to succeed on a substantial point of law and that a substantial part of the sentence will have been served by the time the appeal is heard.

Court orders

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  1. 1.Bail is granted on the applicant's own bond of Kshs 250,000 with the same two sureties as before in the sum of Kshs 200,000 each
  2. 2.The applicant's passport shall be deposited with the deputy registrar of this court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JN
majority
JG
majority
FA
majority
On appeal from
High Court Nairobi
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(a) of the rules of this court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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
p. 1Bail pending appeal - principal consideration
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.
p. 1Test for bail pending appeal
Accordingly bail is granted on the applicant’s own bond of Kshs 250,000 with the same two sureties as before in the sum of Kshs 200,000 each. In addition the applicant’s passport shall be deposited with the deputy registrar of this court.
p. 2Final orders - bail granted

Issues in the judgment

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minor

The judgment as provided does not state the case title, appeal number or neutral citation; the applicant is unnamed.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jivraj Shah v Republic [1986] KECA 36 (KLR)", Case Analysis (1986). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/36/eng@1986-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.