Jackson Maina Wangui v Republic [2018] KECA 630 (KLR)
The bottom line
#The Court of Appeal refused bail to a convicted person awaiting appeal, ruling the constitutional right to bond applies to trials, not appeals.
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 applicant should be released on bail/bond pending the hearing and determination of Criminal Appeal No. 42 of 2017
- 2.Whether bail pending trial under Article 49(1)(h) of the Constitution and bail pending appeal are on the same footing
- 3.Whether the applicant demonstrated overwhelming chances of success of the appeal and exceptional or unusual circumstances justifying bail pending appeal
Key legal issues
#Constitutional basis for bail pending appeal
Article 49(1)(h) governs bail pending trial only; bail pending appeal rests on section 379(4) of the CPC and Rule 5(2)(a) of the Court of Appeal Rules and depends on judicial discretion exercised judiciously
The court distinguished the constitutional right to bond pending a charge or trial, which presumes innocence, from bail pending appeal where the applicant has been convicted and the conviction stands until set aside. The jurisdiction to grant bail pending appeal is grounded in section 379(4) of the CPC and Rule 5(2)(a), neither of which prescribes the circumstances for grant, a gap filled by case law.
Standard for granting bail pending appeal
The applicant must show overwhelming chances of success of the appeal and exceptional or unusual circumstances; one prima facie arguable point suffices for civil stay under Rule 5(2)(b) but not for criminal bail
Relying on Somo v Republic and Jivraj Shah v Republic, the court held that good character, admission of the appeal for hearing, and absence of personal violence are not exceptional circumstances; the dominant consideration is whether the appeal has an overwhelming chance of success, together with the possibility that the sentence or a substantial part of it will have been served by the time the appeal is heard.
Application of the principles to the applicant's case
The grounds of appeal were arguable but there was no guarantee of success; conviction on the lesser offence under section 179(2) CPC was lawful and the applicant's circumstances were not exceptional
The court declined a full analysis of the appeal to avoid prejudging it. It found the trial court had power under section 179(2) of the CPC to convict for manslaughter on the same facts; the applicant's prior good bail conduct was not exceptional; and the DPP's concession was ignored as it formed no basis for changing the court's legal analysis.
Legal principles established
#- Bail pending appeal under Article 49(1)(h) is not on the same footing as bail pending trial; the presumption of innocence does not continue with the same force after conviction
- A single arguable point which need not succeed is insufficient for bail pending appeal in a criminal matter; the applicant must show overwhelming chances of success and exceptional or unusual circumstances
- Admission to bail during trial and the fear of serving the sentence before the appeal is heard are not exceptional circumstances; the latter is curable by an order for expeditious hearing
Court orders
#- 1.The application for bail/bond pending appeal is dismissed
- 2.An order for expeditious hearing and disposal of the appeal is made
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H. C. Cr. C. No. 35 of 2012
- Jurisdiction invoked
- Section 379(4) of the Criminal Procedure Code and Rule 5(2)(a) of the Court of Appeal Rules, 2010
Relief refused
#Bail/bond pending the hearing and final determination of Criminal Appeal No. 42 of 2017
The applicant failed to demonstrate exceptional or unusual circumstances or overwhelming chances of success on appeal
Stay and/or suspension of execution of the judgment, conviction and sentence of the High Court
Not pursued in submissions and not supported by the merits of the appeal
Costs
No costs order recorded 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.
It is plain to us that the Article relates to bail pending trial when the innocence of the accused is presumed, but even then, it is not absolute but depends on demonstration of compelling reasons.
We cannot, however, accept his further submission that a sole arguable point which need not succeed on appeal is sufficient demonstration of those two factors.
The application is devoid of merit and we order that it be and is hereby dismissed. Orders accordingly.
Issues in the judgment
#The judgment records two different dates for the conviction and sentence - the heading says the High Court judgment was dated 14th February 2017, while the body says conviction and sentence occurred on 14th March 2017 and that the applicant was sentenced on 22nd March 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Maina Wangui v Republic [2018] KECA 630 (KLR)", Case Analysis (2018). Criminal Application No. NAI 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/630/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.