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Court of AppealDismissedCriminal Application No. 16 of 2010 (UR12/2010)

Issack Tulicha Guyo v Republic [2011] KECA 394 (KLR)

Court of Appeal
28 January 2011
851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled it can only grant bail after conviction in rare, exceptional cases, and this applicant showed none.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Onyango Otieno and Nyamu JJ.A.) on an application for bail pending appeal by Issack Tulicha Guyo, who had been convicted by a Senior Resident Magistrate at Moyale on two counts of stealing by servant under Section 281 of the Penal Code and sentenced to consecutive terms totalling seven years. The High Court at Meru (Emukule, J) dismissed his appeal on 10th March 2010, confirmed the sentences and cancelled his bail. He then filed a notice of intention to appeal to the Court of Appeal and moved the Court under Rule 5(2)(a) of the Court of Appeal Rules, Section 357(1) of the Criminal Procedure Code and Article 49 of the new Constitution, seeking admission to bail pending the hearing of his intended appeal. The Court held that Section 357(1) applies only to appeals to the High Court from subordinate courts and confers no power on the Court of Appeal to grant bail pending appeal, and that Section 361, which governs appeals to the Court of Appeal, contains no such power either. Article 49, dealing with arrested persons awaiting trial, was similarly held inapplicable to a person convicted and whose conviction had been confirmed on first appeal. The only viable basis was Rule 5(2)(a), under which bail pending appeal is discretionary and granted only in rare and exceptional circumstances, since a convicted person has lost the presumption of innocence and bears the burden of showing the conviction wrong. Counsel identified no exceptional circumstances beyond the likely delay in hearing the appeal. The motion was dismissed.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal has power under Section 357(1) of the Criminal Procedure Code to admit a convicted person to bail pending appeal to the Court of Appeal
  2. 2.Whether Article 49 of the Constitution entitles a person tried, convicted and whose conviction was confirmed by the High Court to bail pending appeal in the Court of Appeal
  3. 3.Whether the applicant had shown exceptional circumstances justifying bail pending appeal under Rule 5(2)(a) of the Court of Appeal Rules

Key legal issues

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01

Statutory basis for bail pending appeal in the Court of Appeal

Holding

Section 357(1) of the Criminal Procedure Code applies only to appeals to the High Court from subordinate courts and confers no power on the Court of Appeal to grant bail pending appeal; nor does Section 361.

Reasoning

The court read Section 357(1) literally: it governs appeals from subordinate courts to the High Court. Appeals to the Court of Appeal from High Court appellate decisions are brought under Section 361, which contains no provision authorising release on bail pending appeal. The applicant's invocation of that section was therefore misplaced, leaving only Rule 5(2)(a) of the Court of Appeal Rules as the operative source of the court's discretionary power.

p. 2
02

Application of Article 49 of the Constitution to bail pending appeal

Holding

Article 49 protects arrested persons awaiting trial and does not entitle a person already convicted, whose conviction has been confirmed by the High Court, to bail from the Court of Appeal.

Reasoning

The court distinguished the pre-trial rights of arrested persons, which Article 49 protects, from the position of a convicted person whose conviction has been affirmed on first appeal. The constitutional presumption of innocence is lost upon conviction, so the Article offers no foothold for post-conviction bail at the appellate stage. The applicant's reliance on the new Constitution was accordingly rejected.

p. 2
03

Test for exercise of discretion under Rule 5(2)(a)

Holding

Bail pending appeal under Rule 5(2)(a) is discretionary and granted only in rare and exceptional circumstances, the burden being on the convicted person to demonstrate such circumstances.

Reasoning

The court reiterated the settled principle that a convicted person has lost the constitutional presumption of innocence and bears the burden of showing the conviction was wrong. Hence bail pending appeal is exceptional. On the facts, apart from submitting that the appeal might take time to be heard, counsel identified no exceptional circumstances; the seven-year sentence alone did not suffice, and the motion was dismissed.

p. 2

Legal principles established

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  • Section 357(1) of the Criminal Procedure Code does not confer on the Court of Appeal power to release convicted persons on bail pending appeal to the Court of Appeal; it applies only to appeals to the High Court from subordinate courts.
  • Article 49 of the Constitution, dealing with rights of arrested persons awaiting trial, does not entitle a person convicted and whose conviction has been confirmed by the High Court to be released on bail by the Court of Appeal pending appeal.
  • Under Rule 5(2)(a) of the Court of Appeal Rules, bail pending appeal is discretionary and will only be granted in rare and exceptional circumstances, bearing in mind that a convicted person has lost the presumption of innocence and bears the burden of showing the conviction was wrong.

Court orders

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  1. 1.The applicant's notice of motion for bail pending appeal is dismissed

The bench

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

majority
majority
On appeal from
High Court of Kenya at Meru
H.C.CR.C. No. 248 of 2008
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules (application for bail pending appeal); Section 357(1) Criminal Procedure Code and Article 49 of the Constitution raised but found inapplicable

Relief refused

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Bail pending the hearing and determination of the intended appeal to the Court of Appeal

The court lacked power under Section 357(1) CPC or Article 49 for such bail, and no exceptional circumstances were shown under Rule 5(2)(a)

p. 2

Costs

No costs order made

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.

That section does not confer on the Court of Appeal power to release convicted persons on bail pending their appeal to the Court of Appeal.
p. 2Scope of Section 357(1) Criminal Procedure Code
It is not, therefore, surprising that it has been stated time and time again that bail pending appeal will only be granted in rare and exceptional circumstances
p. 2Test for bail pending appeal
the applicant’s notice of motion fails and we order that it be and is hereby dismissed. Dated and delivered at Nairobi this 28th day of January 2011.
p. 2Final orders - dismissal of the application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Issack Tulicha Guyo v Republic [2011] KECA 394 (KLR)", Case Analysis (2011). Criminal Application No. 16 of 2010 (UR12/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/394/eng@2011-01-28

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