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Court of AppealStruck OutNotice of Motion dated 9th February 2024 (Criminal Appeal, Nyeri)

Mugure v Republic (Criminal Application E008 of 2024) [2025] KECA 1012 (KLR)

Court of Appeal of Kenya
4 April 2025
SKS. Ole KantaiJLJ. LesiitALAli-Aron
3,328 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a murder suspect's bail application because no notice of appeal had been filed, confirming that document unlocks appeal jurisdiction.

What this practically means

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Executive summary

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Major Peter Mwaura Mugure, a Kenya Defence Forces officer on trial for murder before the High Court at Nyeri, moved the Court of Appeal at Nyeri by notice of motion dated 9th February 2024 under Articles 22(9), 29 and 49(1)(h) of the Constitution and rules 5(2)(a) and 61 of the Court of Appeal Rules, 2022. He sought bail on reasonable terms pending determination of his interlocutory appeal against successive High Court rulings declining him bail (seven such applications having failed between 2020 and 2024), alternatively an expedited hearing of his appeal, or in further alternative transfer from civil custody at Nyeri maximum security prison into military custody under open arrest, invoking sections 133(1)(a), 140(4) and 146 of the Kenya Defence Forces Act. The State opposed, contending the application was a fishing expedition, that bail is not an absolute right, that no change of circumstances was shown, and that the trial was near conclusion with only three witnesses remaining. The Court identified that its power under rule 5(2)(a) can be invoked only where a notice of appeal has been lodged under rule 59/61; the applicant had annexed no notice of appeal nor any ruling or record of the High Court. Applying Feisal Mohamed Ali v Republic, the Court held that the notice of appeal is the device that invokes appellate jurisdiction under Article 164(3), whether the appeal is civil or criminal. Finding no such notice, the Court struck out the motion with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court may grant bail to the applicant pending determination of the substantive interlocutory appeal on bail, and on what terms
  2. 2.Whether, absent grant of bail, the applicant should be remanded in military custody under open arrest rather than civil custody
  3. 3.What orders and/or directions the Court should issue

Key legal issues

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01

Whether the Court can entertain a rule 5(2)(a) bail application where no notice of appeal has been lodged

Holding

It cannot. The jurisdiction under rule 5(2)(a) is conditioned on the filing of a notice of appeal under rule 59/61; without it the application is fatally defective and must be struck out.

Reasoning

Rule 5(2)(a) permits bail pending appeal only in criminal proceedings where a notice of appeal has been given. Article 164(3) grounds appellate jurisdiction, and per Feisal Mohamed Ali v Republic, the notice of appeal is the device that evinces the intention to invoke that jurisdiction. The applicant mentioned appeals but annexed no notice of appeal and no rulings, so the Court lacked any basis to meddle in the High Court's decisions. The motion was struck out.

p. 5

Legal principles established

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  • The appellate jurisdiction of the Court of Appeal, including its power under rule 5(2)(a) to release an appellant on bail pending appeal, can only be invoked where a notice of appeal has been lodged; an application without such notice is fatally incompetent.
  • It is the lodging of a notice of appeal that invokes and institutes the appellate jurisdiction of the Court of Appeal, whether the appeal is civil or criminal.

Court orders

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  1. 1.The notice of motion dated 9th February 2024 is struck out with no order as to costs

The bench

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

SK
majority
JL
majority
AL
majority
On appeal from
High Court of Kenya at Nyeri
Republic v Peter Mwaura Mugure HCCRC 18 of 2019
Jurisdiction invoked
Rule 5(2)(a) and rule 61 of the Court of Appeal Rules, 2022, read with Article 164(3) of the Constitution

Relief refused

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Admission to bail/bond on reasonable terms pending hearing of the application and of the appeal

The application was fatally defective for want of a notice of appeal lodged under rule 61 of the Court of Appeal Rules

p. 8

Expedited hearing of the pending appeal

No relevant submissions were made in support of this prayer

p. 5

Transfer from civil custody to military custody under open arrest

The whole application failed for want of jurisdiction, no notice of appeal having been lodged

p. 8

Costs

No order as to costs (each side to bear its own; the motion was struck out with no order as to costs)

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.

It is trite therefore that the device of the notice of appeal invokes the appellate jurisdiction of this Court. That is the case whether the appeal or intended appeal is civil or criminal.
p. 7Notice of appeal as jurisdictional precondition
We are satisfied that in the absence of a notice of appeal lodged in terms of rule 61 of the Court of Appeal Rules, the notice of motion dated 9th February 2024 is fatally defective. Accordingly, we strike it out with no order as to costs.
p. 8Final orders - striking out for want of notice of appeal

Issues in the judgment

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minor

The quoted passage from Feisal Mohamed Ali states that rule 5(2)(a) bail applications require a notice of appeal under rule 59, while rule 61(1) states the notice of appeal 'shall institute the appeal'; the interplay of rules 59 and 61 in criminal matters is not clarified in this judgment.

minor

The judgment's extracted text contains OCR errors (e.g. 'he released' for 'be released', 'sufiered', 'fiight'), which may affect character-for-character verification of quotes.

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, "Mugure v Republic (Criminal Application E008 of 2024) [2025] KECA 1012 (KLR)", Case Analysis (2025). Notice of Motion dated 9th February 2024 (Criminal Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1012/eng@2025-04-04

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