Joseph Maina Kariuki v Republic [2011] KECA 187 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a convicted person cannot get bail pending appeal unless they show exceptional circumstances or a strong chance the appeal will succeed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether exceptional or unusual circumstances exist to justify admission to bail pending the hearing and determination of the appeal
- 2.Whether the disappearance of the record of proceedings of the superior court constitutes exceptional or unusual circumstances warranting bail
- 3.Whether Article 49 of the Constitution grants a right to bail to persons already convicted of an offence
Key legal issues
#Whether the disappearance of the superior court record of proceedings constitutes exceptional or unusual circumstances justifying bail pending appeal
The Court refused to treat the disappearance of the record as a ground for bail, viewing it as bad practice and a dangerous precedent.
The applicant argued that because the superior court records had disappeared he could not file his appeal, and that this constituted exceptional or unusual circumstances. The Court rejected this, holding that accepting the argument would constitute bad practice which the Court frowns upon and would set a dangerous precedent. The applicant also failed to demonstrate a meritorious appeal, as no draft memorandum of appeal had been placed before the Court.
Whether Article 49 of the Constitution entitles a convicted person to bail pending appeal
Article 49 applies only to arrested persons, not to convicted persons who have lost the presumption of innocence, particularly where two courts below have upheld the conviction.
Counsel for the applicant invoked Article 49 of the Constitution to argue for bail pending appeal. The Court, agreeing with State Counsel, held that the Article grants the right to bail to persons arrested in respect of alleged crimes and does not apply to persons already convicted, since conviction removes the presumption of innocence. In this matter, two courts below had upheld the conviction and death sentence.
Whether the applicant had demonstrated a meritorious appeal
The applicant had not shown a meritorious appeal; no draft memorandum of appeal was before the Court.
Among the agreed principles from Jivraj Shah is that bail will be granted where the appeal is likely to succeed on a substantial point of law. The applicant relied on likelihood of success, substantial service of sentence and ill health, but the Court noted it had not had the benefit of perusing even a draft memorandum of appeal and had no notion of what would be argued, so the merit of the appeal was not demonstrated.
Legal principles established
#- The principal consideration in an application for bail 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.
- Bail pending appeal may be granted 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.
- Article 49 of the Constitution confers the right to bail only on persons arrested in respect of alleged crimes, not on convicted persons, who have lost the presumption of innocence.
Court orders
#- 1.The application for bail pending appeal is disallowed for lack of merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H. C. Cr. A. Nos. 199 & 201 of 2002
- Jurisdiction invoked
- Rule 5 (2) (a) of the Court of Appeal Rules
Relief refused
#Admission to bail pending the hearing and determination of the appeal
No exceptional or unusual circumstances shown; loss of the trial record does not justify bail; no meritorious appeal demonstrated; Article 49 does not apply to convicted persons
Costs
No costs order made in the ruling
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.
the principal consideration in an application for bail 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
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 substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist
that Article gives the right of bail to persons “arrested” in respect of alleged crimes, and is not applicable to those “convicted” for offences because the convicted ones have lost the presumption of innocence
Accordingly, we are of the view that there is no merit in this application and disallow the same.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Maina Kariuki v Republic [2011] KECA 187 (KLR)", Case Analysis (2011). Criminal Application No. NAI. 18 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/187/eng@2011-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.