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Court of AppealDismissedNot stated in the judgment (Motion dated 23rd October 2024)

Ndakwa v Republic (Criminal Application E112 of 2024) [2025] KECA 723 (KLR)

Court of Appeal of Kenya
25 April 2025
752 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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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

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Omondi, Kimaru and Muchelule, JJA) on a Motion dated 23rd October 2024 by Ayub Mafuvo Ndakwa seeking release on bail pending his appeal against a conviction for murder and a 10-year sentence imposed by the High Court at Migori, sentences to run from 3rd October 2024. The court restated the governing principles: an accused awaiting trial is entitled to bail under Article 49(1) of the Constitution on the strength of the presumption of innocence, but upon conviction that presumption is displaced, and a convicted appellant is not entitled to bail as of right. The court seized of the appeal may grant bail only where the appeal has overwhelming chances of success, or where unusual and exceptional circumstances make denial of liberty against the interests of justice, citing Daniel Dominic Karanja v Republic and Jivraj Shah v R. The applicant relied on his children's education, an alleged chronic illness that prison facilities could not address, and his compliance with bond terms during trial, but counsel advanced these without elaboration or substantiation. The court held that the children's education alone was not an unusual or exceptional circumstance, and that prison medical facilities, with their referral system, could adequately manage his ailment. Although State counsel, Ms Ikol, conceded the application on the ground that the appeal may take a while to be heard, she maintained that the appeal raised no overwhelming chances of success; the court held that prospects of success are the major consideration, so the concession could not assist the applicant. The application was accordingly declined. No costs order was made and no dissent was recorded.

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 had demonstrated that his appeal has overwhelming chances of success so as to warrant release on bail pending appeal
  2. 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. 3.Whether the State's concession that the appeal may take a while to be heard could justify release on bail

Key legal issues

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01

Threshold for bail pending appeal

Holding

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

Reasoning

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.

p. 1
02

Whether the applicant's personal circumstances constituted exceptional grounds

Holding

The applicant's children's education and his claimed chronic illness did not amount to unusual or exceptional circumstances warranting release on bail

Reasoning

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.

p. 2
03

Effect of the State's concession

Holding

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

Reasoning

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.

p. 2
04

Compliance with bail terms during trial as a factor

Holding

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

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.The application for release on bail pending appeal was declined

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 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

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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

p. 2

Costs

No costs order was 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.

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.
p. 1No entitlement to bail pending appeal; presumption of a proper conviction
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
p. 1Threshold for bail pending appeal - 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.
p. 2Children's education is not an exceptional circumstance
This is the major consideration, and, therefore, her concession cannot help the applicant.
p. 2State concession on delay cannot substitute for prospects of success
In conclusion, we determine that the application by the applicant for release on bail pending appeal is not merited. The same is hereby declined.
p. 2Final orders - application declined

Issues in the judgment

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minor

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

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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, "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.