Salim Hamisi Alias Wepukhulu v Republic [2018] KECA 235 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that people sentenced to death cannot get bail while waiting for their appeal to be heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application brought under the wrong sub-rule (Rule 5(2)(b) instead of Rule 5(2)(a)) could be cured as a technical error
- 2.Whether a person convicted of murder and sentenced to death is entitled to bail pending appeal
- 3.Whether Article 49(1)(h) of the Constitution applies to a convicted person sentenced to death
Key legal issues
#Effect of citing the wrong sub-rule in a bail-pending-appeal application
Citing Rule 5(2)(b) instead of Rule 5(2)(a) was a technical error that did not oust the Court's jurisdiction under Rule 5(2)(a).
The application was brought under Rule 5(2)(b), the wrong sub-rule for bail pending appeal. The Court held the misjoinder of the correct provision was a technical error which did not prevent the exercise of the jurisdiction conferred by Rule 5(2)(a). However, that jurisdiction itself is constrained by the statute.
Entitlement to bail pending appeal for a person sentenced to death
A person convicted of murder and sentenced to death has no right to bail pending appeal, since section 379(4) of the Criminal Procedure Code expressly excludes that category and the Rules are subordinate to the statute.
Section 379(4) of the Criminal Procedure Code, which governs appeals from the High Court's original jurisdiction, permits bail pending appeal save where the appellant has been sentenced to death. The Court of Appeal Rules, being subsidiary legislation, cannot override that exclusion, so Rule 5(2)(a) is subject to the statutory bar on bail for persons under sentence of death.
Scope of the constitutional right to bail under Article 49(1)(h)
Article 49(1)(h) protects arrested persons pending charge or trial only and does not apply to a convicted person already sentenced to death.
The applicant argued his ill health and the prospects of his appeal, having been on bail during trial. The Court held that the Article 49(1)(h) right attaches to arrested persons pending charge or trial; a person convicted of murder and sentenced to death falls outside its scope, so no constitutional right to bail pending appeal was available to him.
Legal principles established
#- Section 379(4) of the Criminal Procedure Code, being superior to the Court of Appeal Rules (subsidiary legislation), denies bail pending appeal to persons sentenced to death; Rule 5(2)(a) is subject to that statutory bar.
- Article 49(1)(h) of the Constitution, conferring a right to bail, applies only to arrested persons pending charge or trial and does not extend to persons convicted and sentenced to death.
Court orders
#- 1.The application for bail pending appeal was struck out as incompetent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- H.C.CR.C. No. 10 of 2012
- Jurisdiction invoked
- Rule 5(2)(a) of the Court of Appeal Rules read with section 379(4) of the Criminal Procedure Code
Relief refused
#Bail pending the hearing of Criminal Appeal No. 77 of 2017
Section 379(4) of the Criminal Procedure Code denies bail pending appeal to persons sentenced to death, and the application was incompetent
Costs
No costs order was 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.
For the foregoing reasons, the application being incompetent is stuck out.
Thus Rule 5 (2) (a) is subject to section 379 (4) of the Criminal Procedure Code which denies a right to bail pending appeal to persons sentenced to death.
Article 49 (1) (h) of the Constitution which gives an arrested person a right to be released on bond or bail on reasonable conditions pending charge or trial does not apply to the appellant who is convicted for murder and already sentenced to death.
Issues in the judgment
#Typographical error in the judgment: the Criminal Procedure Code is rendered 'Criminal Produce Code'.
Typographical error in the final order: 'stuck out' instead of 'struck out'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Hamisi Alias Wepukhulu v Republic [2018] KECA 235 (KLR)", Case Analysis (2018). Criminal Appeal (Application) No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/235/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.