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Court of AppealDismissedCriminal Application (Bail Pending Appeal) - Notice of Motion dated 29th October 2024

Wamalabe alias Guka v Republic (Criminal Application E006 of 2024) [2025] KECA 986 (KLR)

Court of Appeal of Kenya
30 May 2025
451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused bail to an 84-year-old convict, ruling that age and illness known to lower courts are not exceptional grounds for release pending appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Omondi, Kimaru and Muchelule, JJAA) declining an application for bail pending appeal by John Wamalabe alias Guga, an 84-year-old man convicted in Sirisia Criminal Case No. 027 of 2020 of defilement under sections 8(1) and 8(3) of the Sexual Offences Act and sentenced to 20 years' imprisonment. The High Court at Bungoma confirmed the conviction but reduced the sentence to 10 years, and his further appeal to the Court of Appeal is pending. In a notice of motion dated 29th October 2024 he sought release on bail, citing chronic peptic ulcers, hypertension, asthma, his advanced age, deteriorating health, good conduct and his role as sole breadwinner. The State opposed, submitting that no exceptional circumstances were demonstrated, that the application was an afterthought filed one year after the High Court decision, and that the applicant had served a substantial part of his sentence; the court also noted he was related to the complainant. Applying the settled principle from Ademba v Republic that bail pending appeal requires exceptional or unusual circumstances, one being a likelihood of success, the court held that the applicant's age and health, being facts known to the courts below, were not exceptional, and that the grounds of appeal did not show overwhelming chances of success. It emphasised that a convicted person is not entitled to bail as of right. The application was dismissed, with a direction that, given the applicant's age, the appeal be prioritised.

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 exceptional or unusual circumstances justifying release on bail pending appeal
  2. 2.Whether the pending appeal had overwhelming chances of success

Key legal issues

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01

Whether advanced age and ill-health of a convicted person constitute exceptional circumstances for bail pending appeal

Holding

No - age and sickness known to the trial court and first appellate court do not present an exceptional or unusual case warranting the Court's discretion in favour of the applicant.

Reasoning

The applicant was 84 years old with chronic ailments, but the court held these facts must have been within the knowledge of the trial court and the first appellate court when convicting and sentencing him. They therefore did not constitute new or exceptional circumstances. Further, the grounds in the memorandum of appeal, without elaboration, did not demonstrate that the appeal had overwhelming chances of success, which is a key criterion for bail pending appeal.

p. 2
02

Whether a convicted person is entitled to bail pending appeal

Holding

No - a convicted and sentenced person enjoys no entitlement to bail; the presumption is that the conviction and sentence are proper.

Reasoning

The court distinguished the position of a person awaiting trial, who may be entitled to bail, from that of a convicted person. After conviction and sentence, a presumption of regularity attaches, so bail pending appeal is discretionary and exceptional, dependent on showing unusual circumstances or a likely successful appeal.

p. 2

Legal principles established

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  • Bail pending the hearing and determination of an appeal can only be granted where exceptional or unusual circumstances exist, one of which is the likelihood of the appeal succeeding
  • Once a person has been convicted and sentenced, there is a presumption of a proper conviction and sentence, and unlike a person awaiting trial, he is not entitled to bail as of right

Court orders

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  1. 1.The application for bail pending appeal was declined
  2. 2.Given the applicant's advanced age, the appeal was directed to be prioritised

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 Bungoma
Appeal from Sirisia Criminal Case No. 027 of 2020
Jurisdiction invoked
Inherent discretion of the Court of Appeal to grant bail pending appeal (rule cited via Ademba v Republic); applicant's pending appeal to the Court of Appeal

Relief refused

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Release of the applicant on bail pending the hearing and determination of his appeal

Advanced age and illness did not constitute exceptional or unusual circumstances, and the grounds of appeal did not show overwhelming chances of success

p. 2

Costs

No costs order was made

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 the hearing and determination of an appeal can only be granted if there are exceptional or unusual circumstances, one of which is the likelihood of the appeal succeeding
p. 1Threshold for bail pending appeal
once a person has been convicted and sentenced, there is a presumption that he has been properly convicted and sentenced, and, therefore, unlike when he is awaiting trial, he is not entitled to bail
p. 2Presumption of regularity post-conviction
Without any further elaboration, the grounds alone do not show that the appeal has overwhelming chances of success.
p. 2Merits of the appeal as a criterion
We decline the invitation to release the applicant on bail, but direct that, given his age, the appeal be prioritised.
p. 2Final orders and disposition

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, "Wamalabe alias Guka v Republic (Criminal Application E006 of 2024) [2025] KECA 986 (KLR)", Case Analysis (2025). Criminal Application (Bail Pending Appeal) - Notice of Motion dated 29th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/986/eng@2025-05-30

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