Shula Songa Makwata & 1 other v Republic
The bottom line
#Kenya's Court of Appeal refused bail to two convicted appellants, ruling that arguable appeals and manageable illnesses don't justify release; it instead fast-tracked their appeal hearing.
What this practically means
#Executive summary
#Key legal issues
#Test for bail pending appeal
Bail pending appeal is discretionary and requires exceptional or unusual circumstances; overwhelming chances of success or substantial merit in the appeal may justify it
The Court reiterated the settled principles from Shah v Republic, Dominic Karanja v Republic and Jivraj Shah v Republic. A convicted person has lost the presumption of innocence and bears the burden of showing the conviction was wrong. The Court found the appeal eminently arguable but not one with overwhelming chances of success, so the first limb was not satisfied.
Medical grounds as special circumstances
Diabetes, hypertension and pulmonary tuberculosis, as evidenced by external medical reports, do not establish special circumstances because such conditions can be managed within the prison system
The Court held that ill health without more is insufficient; the applicant must show the ailment cannot be managed in prison or is life-threatening on humanitarian grounds. The medical documents were from outside doctors rather than prison medical personnel, reducing their probative value, and the conditions disclosed were considered manageable by prison medical staff.
Substantial service of sentence before appeal heard
Where an appellant is likely to serve a substantial portion of the sentence before the appeal is determined, the Court may grant bail or, alternatively, expedite the appeal; here the Court chose expedition
The Court accepted, with the respondent's concession, that the applicants were likely to serve a substantial portion of their concurrent terms given the docket state. Rather than granting bail, the Court exercised its discretion to order the appeal heard on a priority basis during the current term, directing the Deputy Registrar accordingly.
Legal principles established
#- Bail pending appeal is not an entitlement but a matter of discretion granted only in rare and exceptional circumstances; the presumption of innocence dissipates upon conviction
- Ill health alone does not warrant bail pending appeal; the applicant must show the ailment cannot be managed in prison or is life-threatening such that humanitarian considerations militate release
- Where an applicant is likely to serve a substantial portion of the sentence before the appeal is heard, the Court may either grant bail or expedite the hearing of the appeal
Court orders
#- 1.Application for bail pending appeal not granted
- 2.Appeal to be heard on a priority basis
- 3.Deputy Registrar directed to list the appeal for hearing during the current term
- On appeal from
- High Court
- Kakamega High Court Criminal Appeals No. 45 & 46 of 2021
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal to grant bail pending appeal (discretionary jurisdiction; no constitutional entitlement invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shula Songa Makwata & 1 other v Republic", Case Analysis (2024). Criminal Application (Bail Pending Appeal) arising from Criminal Appeals – Kakamega High Court Criminal Appeals No. 45 & 46 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/134/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.