Ndakwa v Republic (Criminal Application E112 of 2024) [2025] KECA 723 (KLR)
The bottom line
#The Court of Appeal ruled that bail pending appeal is not automatic; convicted persons must prove their appeal will likely succeed or show exceptional circumstances.
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 had demonstrated that his appeal has overwhelming chances of success so as to warrant release on bail pending appeal
- 2.Whether unusual and exceptional circumstances exist, including his alleged chronic illness and the education of his children, that would make denial of bail contrary to the interests of justice
- 3.Whether the State's concession that the appeal may take a while to be heard could justify release on bail
Key legal issues
#Threshold for bail pending appeal
Bail pending appeal is not a right; the applicant must show overwhelming chances of success or unusual and exceptional circumstances, such as a fundamental point of law, flimsy evidence of conviction, or a sentence that will be served before the appeal is heard
The court distinguished the pre-conviction entitlement to bail under Article 49(1), founded on the presumption of innocence, from the post-conviction position, where the presumption is of a proper conviction. Bail pending appeal lies in the discretion of the court seized of the appeal and requires demonstration that the appeal has overwhelming chances of success, citing Daniel Dominic Karanja v Republic, or unusual and exceptional circumstances per Jivraj Shah v R.
Whether the applicant's personal circumstances constituted exceptional grounds
The applicant's children's education and his claimed chronic illness did not amount to unusual or exceptional circumstances warranting release on bail
While incarceration may inconvenience the education of an applicant's children, that alone does not present an unusual or exceptional occasion warranting bail. On health, the court noted that prison authorities have medical facilities with a referral system, so the applicant's ailment can be adequately handled within the prevailing circumstances affecting other prisoners. General assertions by counsel, without elaboration or substantiation, could not demonstrate likelihood of success.
Effect of the State's concession
The State's concession that the appeal may take a while to be heard could not assist the applicant because the decisive test is the prospects of success of the appeal
Learned counsel for the State conceded the application on the ground that the appeal may take a while to be heard, while maintaining that the appeal did not raise overwhelming chances of success. The court held that the prospects of success are the major consideration, and therefore the concession on delay could not justify the release of the applicant on bail pending appeal.
Compliance with bail terms during trial as a factor
That an applicant was on bail during trial and did not abscond is only a minor consideration, since obedience to bail terms is an expected civic responsibility
The court acknowledged that prior compliance with the terms of release on bond is a relevant factor in the discretion, but downgraded its weight: it is a minor consideration because it is the expected civic responsibility of an accused person to obey all the terms attendant to his release on bail. It cannot substitute for the required demonstration of overwhelming chances of success or exceptional circumstances.
Legal principles established
#- A convicted person is not entitled to bail pending appeal as of right; bail pending appeal may only be granted where the appeal has overwhelming chances of success or where unusual and exceptional circumstances make denial of liberty against the interests of justice
- A State counsel's concession that an appeal may take time to be heard cannot justify bail where the appeal does not show overwhelming chances of success, since that is the major consideration
Court orders
#- 1.The application for release on bail pending appeal was declined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Migori
- Not stated in the judgment
- Jurisdiction invoked
- Inherent discretion of the Court of Appeal to release a convicted appellant on bail pending appeal, referenced to Article 49(1) of the Constitution on the entitlement of an accused awaiting trial to bail
Relief refused
#Release of the appellant on bail pending the hearing and determination of his appeal against conviction and sentence for murder
The applicant failed to demonstrate that the appeal has overwhelming chances of success, and the circumstances relied on (children's education and health) do not amount to unusual or exceptional circumstances; the State's concession did not cure this failure
Costs
No costs order was made in the judgment
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.
Upon conviction and sentence, however, the presumption is that he has been properly convicted and sentenced and therefore he is not entitled to be released on bail.
The court to which he has appealed against the conviction and sentence may order his release on bail, while the hearing and determination of the appeal is awaited, if it is demonstrated that the appeal has overwhelming chances of success
The children’s education may be inconvenienced by their father’s incarceration, but this alone would not present an unusual or exceptional occasion to warrant the release on bail as is sought by the applicant.
This is the major consideration, and, therefore, her concession cannot help the applicant.
In conclusion, we determine that the application by the applicant for release on bail pending appeal is not merited. The same is hereby declined.
Issues in the judgment
#The judgment does not state the High Court appeal number, the date of conviction and sentence, or a neutral citation, and contains no numbered final orders beyond the concluding paragraph
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndakwa v Republic (Criminal Application E112 of 2024) [2025] KECA 723 (KLR)", Case Analysis (2025). Not stated in the judgment (Motion dated 23rd October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/723/eng@2025-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.