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Court of AppealDismissedCriminal Application (Notice of Motion) - Nyeri

Nkonge v Republic (Criminal Appeal (Application) 56 of 2022) [2025] KECA 1598 (KLR)

Court of Appeal of Kenya
3 October 2025
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused bail to a convicted man because illness and family hardship are not exceptional reasons to release someone pending appeal.

What this practically means

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Executive summary

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The applicant, Ephantus Mugambi Nkonge, was convicted of murder before the High Court at Chuka and sentenced to twenty years' imprisonment. He lodged an appeal to the Court of Appeal at Nyeri and brought a notice of motion under Article 51 of the Constitution and section 124 of the Criminal Procedure Code seeking release on bail or bond pending the hearing and determination of that appeal. He relied on the asserted high chances of success of the appeal, his claim that he was not a flight risk given that he had been admitted to bond at trial and never absconded, his deteriorating health, and his role as sole breadwinner for a wife and three children. The State opposed, submitting that no exceptional circumstances were demonstrated. The Court of Appeal, comprising W. Karanja, Jamila Mohammed and L. Kimaru, applied its precedents in Somo vs Republic and Daniel Dominic Karanja v Republic, which require a convicted person seeking bail pending appeal to demonstrate exceptional or unusual circumstances and, where relying on the merits, an overwhelming probability that the appeal will succeed. The court held that ill health is not exceptional because prisons have medical facilities and referral systems, and family hardship is not an unusual factor; nor does a convict enjoy the presumption of innocence. The applicant also failed to place the grounds of appeal before the court, so the prospects of success could not be assessed. The application was dismissed in its entirety.

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 should be released on bail or bond pending hearing and determination of his appeal against conviction and sentence
  2. 2.Whether the applicant demonstrated exceptional or unusual circumstances, including an overwhelming probability that his appeal would succeed, to justify bail pending appeal

Key legal issues

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01

Test for bail pending appeal

Holding

The applicant must show exceptional or unusual circumstances, and where relying on the merits of the appeal, an overwhelming probability that it will succeed

Reasoning

The court applied its previous decisions in Somo vs Republic and Daniel Dominic Karanja v Republic, holding that a custodial sentence distinguishes a convict from an accused person at trial, and that mere assertions of good character, hardship to family, or promises not to abscond are insufficient grounds for release pending appeal.

p. 2
02

Whether ill health and family hardship constitute exceptional circumstances

Holding

They do not; prisons have medical facilities and a referral system, and hardship to the family is not exceptional

Reasoning

The court agreed with the respondent that the applicant's ill health was not shown to be beyond the capability of prison medical services, including referral hospitals. The deprivation of a breadwinner is likewise not an exceptional or unusual factor warranting the court's discretion in the applicant's favour.

p. 3
03

Whether the intended appeal had overwhelming chances of success

Holding

The applicant failed to persuade the court, and no grounds of appeal were placed before the court to indicate likelihood of success

Reasoning

Other than filing a notice of appeal, the applicant did not provide the court with the grounds of appeal, so the court could not assess the likelihood of the appeal's success. The burden of demonstrating an overwhelming probability of success lay on the applicant and was not discharged.

p. 3

Legal principles established

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  • A convicted person seeking bail pending appeal must demonstrate exceptional or unusual circumstances, and where the appeal's success is relied upon, an overwhelming probability that it will succeed
  • Ill health and deprivation of a family's breadwinner do not constitute exceptional or unusual circumstances for bail pending appeal, and a convicted person does not enjoy the presumption of innocence

Court orders

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  1. 1.The application for bail pending appeal is dismissed

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 at Chuka
Murder case - number not stated
Jurisdiction invoked
Article 51 of the Constitution and section 124 of the Criminal Procedure Code

Relief refused

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Release on bail or bond pending hearing and determination of the appeal

The applicant did not demonstrate exceptional or unusual circumstances, nor an overwhelming probability of success of the appeal; ill health and family hardship are not exceptional factors

p. 3

Costs

No costs order made; the application was simply dismissed.

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.

The application, therefore, lacks merit and is hereby dismissed.
p. 3Final orders - dismissal of bail pending appeal application
he must show that there is an overwhelming probability that it will succeed.
p. 2Test for bail pending appeal
The minor relevant considerations would be whether there are exceptional or unusual circumstances.
p. 2Exceptional or unusual circumstances
The applicant’s position as a convict means that he does not benefit from the presumption of innocence that those facing trial enjoy.
p. 3Presumption of innocence ends on conviction
A solemn assertion by an applicant that he will not abscond if he is released is not suficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.
p. 2Insufficiency of assurances of non-abscondment

Issues in the judgment

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minor

The applicant is referred to inconsistently as 'applicant' and 'appellant' within the judgment

minor

The case number of the application and of the appeal are not stated in the judgment

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, "Nkonge v Republic (Criminal Appeal (Application) 56 of 2022) [2025] KECA 1598 (KLR)", Case Analysis (2025). Criminal Application (Notice of Motion) - Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1598/eng@2025-10-03

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