Emmanuel Ochieng Awuondo v Republic [2018] KECA 230 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can release convicted appellants on bail pending a second appeal, but only where the appeal raises a substantial point of law.
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 power under Rule 5(2)(a) of the Court of Appeal Rules to release a second appellant on bail pending appeal
- 2.Whether the applicant satisfied the threshold for admission to bail pending the determination of his appeal
Key legal issues
#Jurisdiction to grant bail pending a second appeal
The Court has jurisdiction under Rule 5(2)(a) of the Court of Appeal Rules to release a second appellant on bail pending appeal, even though neither the Criminal Procedure Code generally, nor Section 379(4) (which applies only to first appeals) nor Section 361(6) (which empowers only a High Court judge), confers that power expressly on the Court of Appeal.
Section 379(4) of the Criminal Procedure Code was inapplicable because it relates only to first appeals to the Court of Appeal, while Section 361(6) empowers only a High Court judge to grant bail where a second appeal is pending and does not mention the Court of Appeal. The Court nonetheless found ample precedent establishing that Rule 5(2)(a) of its own Rules donates power to release a second appellant on bail pending appeal, and it exercised that jurisdiction on this application.
Threshold for bail pending second appeal
The applicant failed the threshold because his grounds of appeal did not raise a substantial point of law capable of resulting in the quashing of his conviction.
Applying the Kibera v. Republic test, the Court examined the record of appeal and the memorandum of appeal. The prosecution case was that the applicant was one of two people transporting 339 kilograms of cannabis sativa in the motor vehicle where the drugs were recovered, while the applicant and co-accused said they were not inside the vehicle. Both courts below made a concurrent factual finding that the applicant and co-accused were occupants of the vehicle. Against those concurrent findings, no substantial point of law was shown, and the application was dismissed.
Legal principles established
#- The Court of Appeal has power donated by Rule 5(2)(a) of the Court of Appeal Rules to release a second appellant on bail pending appeal, notwithstanding the silence of the Criminal Procedure Code
- Bail pending a second appeal may be granted only where the court is satisfied there is a substantial point of law to be argued which could result in the conviction being quashed
Court orders
#- 1.The application for bail pending appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Homa Bay
- H.C.CR.A. Nos. 36 & 37 of 2016
- Jurisdiction invoked
- Rule 5(2)(a) of the Court of Appeal Rules - power to release an appellant on bail pending the determination of an appeal
Relief refused
#Bail pending appeal
The applicant failed to demonstrate a substantial point of law likely to result in the conviction being quashed, having regard to the concurrent findings of the two courts below that he was an occupant of the motor vehicle in which the drugs were recovered
Costs
No costs order made
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 appellate court may grant bail pending a second appeal if it is satisfied that there is a substantial point of law to be argued which could result in the conviction being quashed.
Rule 5 (2) (a) of the Court of Appeal Rules (the Rules) confers power to the Court to release an appellant on bail pending the determination of an appeal.
In the premises, the application is dismissed. We so order.
Issues in the judgment
#The judgment misspells the first cited authority as 'Dominc Karanja' in both instances where it appears
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Ochieng Awuondo v Republic [2018] KECA 230 (KLR)", Case Analysis (2018). Criminal Appeal (Application) No. 156 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/230/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.