Mutegi & another v Republic (Criminal Appeal (Application) 100 of 2023) [2025] KECA 942 (KLR)
The bottom line
#The Court of Appeal refused bail pending appeal, confirming that convicted persons must prove exceptional circumstances, not just claim court delays.
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 applicants should be admitted to reasonable bail or bond terms pending the hearing and determination of their appeal
- 2.Whether the alleged inordinate delay in hearing the appeal constitutes unusual or exceptional circumstances warranting bail pending appeal
Key legal issues
#Threshold for bail pending appeal
A convicted person seeking bail pending appeal bears the burden of proving unusual or exceptional circumstances; bail is discretionary and not a constitutional right for a convict.
Relying on Epungure v Republic, Mary Ngechi Ng'ethe v Republic, Jivraj Shah, Dominic Karania and the Bail and Bond Policy Guidelines, the court held that conviction extinguishes the presumption of innocence, so sufficient reasons must exist before a convict may be released pending appeal. The Guidelines require an 'overwhelming probability' that the appeal will succeed.
Whether case backlog/alleged registry information constitutes exceptional circumstances
An unsubstantiated allegation that the registry indicated a long wait for a hearing date does not constitute exceptional circumstances warranting bail pending appeal.
The applicants asserted they were informed their 2023-filed appeal would await earlier appeals, but annexed no evidence supporting that claim. Even assuming delay, they serve a 15-year sentence and there is no likelihood they will serve a substantial part of it before the appeal is determined.
Whether the appeal has arguable prospects of success
Without the record of appeal, the court could not assess whether the appeal has high chances of success, so that limb failed.
The applicants asserted the appeal had merit, but the record of appeal was not availed to the court, leaving it unable to comment on a prima facie basis on the chances of success. Consequently, neither exceptional circumstances nor prospects of success were established.
Legal principles established
#- Bail pending appeal is discretionary, not a right; a convicted person no longer enjoys the presumption of innocence and must demonstrate unusual or exceptional circumstances to obtain bail pending appeal.
- The burden lies on the convicted person to demonstrate unusual or exceptional circumstances, including that the appeal has overwhelming probability of success or that a substantial part of the sentence will have been served by the time the appeal is heard.
Court orders
#- 1.The application dated 30th September 2024 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Chuka
- not stated in judgment
- Jurisdiction invoked
- Articles 19, 22, 25, 39, 48, 49, 50, 51 and 159(2)(d) of the Constitution of Kenya; Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Admission to reasonable bail or bond terms pending the hearing and determination of the appeal
No unusual or exceptional circumstances shown; alleged registry information unsupported; no likelihood of serving a substantial part of the 15-year sentence before appeal hearing; appeal merits not demonstrable as record of appeal not availed
Direction that the appeal be set down for hearing at the earliest convenient date
Application dismissed in its entirety
Costs
We shall make no order as to costs.
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.
In considering all the above-mentioned cases and principles therefrom, it is trite that bail pending appeal is not an outright right but one that is in the discretion of the Court.
bail pending appeal will only be granted in rare and exceptional circumstances.
Even supposing there may be some delay in hearing their appeal, they are serving a sentence of 15 years’ imprisonment there is no likelihood that they will serve a substantial part of their sentence before the appeal is determined.
The result is that the application lacks in merit and is dismissed. We shall make no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutegi & another v Republic (Criminal Appeal (Application) 100 of 2023) [2025] KECA 942 (KLR)", Case Analysis (2025). Criminal Application (not numbered in judgment; dated 30th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/942/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.