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Court of AppealDismissedNotice of motion dated 24th October, 2023 (Criminal appeal pending)

Masika v Republic (Criminal Appeal (Application) E003 of 2021) [2024] KECA 1452 (KLR)

Court of Appeal
18 October 2024
669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused bail to a convicted man because he offered claims without evidence, confirming bail pending appeal demands real proof.

What this practically means

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Executive summary

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Leonard Masika, convicted of rape by the Chief Magistrate's Court at Bungoma under Section 31(a) & (c) as read with Section 33 of the Sexual Offences Act and sentenced to 49 years imprisonment, applied to the Court of Appeal at Kisumu for bail pending the hearing of his second appeal. His first appeal against conviction and sentence was dismissed by the High Court (Kiarie, J.) on 4th October 2018. In his motion dated 24th October 2023, he claimed his appeal was arguable with overwhelming chances of success, cited chronic medical conditions requiring specialist care, pleaded he was the sole breadwinner, and offered to abide by bail terms. The respondent, through the ODPP, opposed the application relying on Jivraj Shah v Republic, arguing there was no material evidence supporting the motion. The Court, in a single judgment delivered by Okwengu, Omondi and Ngugi, JJA on 18th October 2024, restated the settled principles: a convicted person has lost the constitutional presumption of innocence, and bail pending appeal is granted only in rare and exceptional circumstances; the principal consideration is exceptional or unusual circumstances making bail in the interest of justice, coupled with an appeal likely to succeed on a substantial point of law where the sentence or a substantial part of it will have been served by the hearing date. The applicant's motion contained only bare assertions: he did not avail the High Court judgment, identified no issue of law, and produced no documents supporting his medical claims. The application 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 applicant has demonstrated exceptional or unusual circumstances warranting bail pending appeal
  2. 2.Whether the intended second appeal has overwhelming chances of success on a substantial point of law

Key legal issues

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01

Test for bail pending appeal under Rule 5(2)(b)/5(2)(a) of the Court of Appeal Rules

Holding

The Court has discretion to grant bail pending appeal, exercised only where exceptional or unusual circumstances exist and the appeal has overwhelming chances of success on a substantial point of law.

Reasoning

The Court restated that a person convicted by a competent court has lost the presumption of innocence under Article 49 of the Constitution, so bail pending appeal is granted in rare and exceptional circumstances. Citing Jivraj Shah v Republic, the principal consideration is exceptional or unusual circumstances making bail in the interest of justice, and secondly, where the appeal appears likely to succeed on a substantial point of law and the sentence or a substantial part of it will have been served before the appeal is heard.

p. 2
02

Whether bare assertions suffice to establish exceptional circumstances

Holding

No; the applicant must place material before the Court, including the judgment appealed from and evidence supporting claims such as medical conditions.

Reasoning

The Court found the applicant had made only bare assertions without demonstrating unusual circumstances. He did not avail the High Court judgment from which he intended to appeal, identified no issue of law, and provided no documents supporting his alleged chronic medical condition requiring specialist care. Bare claims unsupported by material evidence cannot ground the exceptional circumstances threshold for bail pending appeal.

p. 2

Legal principles established

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  • Bail pending appeal will only be granted in rare and exceptional circumstances, as a convicted person has lost the presumption of innocence
  • The principal considerations for bail pending appeal are exceptional or unusual circumstances in the interest of justice, and an appeal likely to succeed on a substantial point of law where the sentence or substantial part of it will have been served by the time the appeal is heard

Court orders

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  1. 1.The applicant's application for bail pending appeal was dismissed

The bench

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

majority
majority
majority
On appeal from
High Court
Jurisdiction invoked
Rule 5(2)(a) of the Court of Appeal Rules - discretion to grant bail pending the hearing of an appeal before the Court

Relief refused

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Bail pending the hearing and determination of the second appeal

The applicant made bare assertions without demonstrating exceptional or unusual circumstances or that the appeal has overwhelming chances of success

p. 2

Costs

No costs order made in the judgment

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.

bail pending appeal will only be granted in rare and exceptional circumstances.
p. 2Threshold for bail pending appeal
the principle consideration for granting bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court can conclude that it is in the interest of justice to grant bail.
p. 2Principal consideration for bail pending appeal
In this case, the applicant has only made bare assertions without demonstrating any unusual circumstances.
p. 2Evidentiary burden on applicant
We find no merit in his application and the same is dismissed.
p. 2Final orders - dismissal of the motion

Issues in the judgment

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minor

The judgment refers to 'Rule 5(2)(a) of the Court of Appeal Rules' as the basis for bail pending appeal, though the established rule governing bail pending appeal is commonly Rule 5(2)(b); the text as written cites 5(2)(a).

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, "Masika v Republic (Criminal Appeal (Application) E003 of 2021) [2024] KECA 1452 (KLR)", Case Analysis (2024). Notice of motion dated 24th October, 2023 (Criminal appeal pending). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1452/eng@2024-10-18

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