Nkonge v Republic (Criminal Appeal (Application) 56 of 2022) [2025] KECA 1598 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be released on bail or bond pending hearing and determination of his appeal against conviction and sentence
- 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
#Test for bail pending appeal
The applicant must show exceptional or unusual circumstances, and where relying on the merits of the appeal, an overwhelming probability that it will succeed
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.
Whether ill health and family hardship constitute exceptional circumstances
They do not; prisons have medical facilities and a referral system, and hardship to the family is not exceptional
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.
Whether the intended appeal had overwhelming chances of success
The applicant failed to persuade the court, and no grounds of appeal were placed before the court to indicate likelihood of success
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.
Legal principles established
#- 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
#- 1.The application for bail pending appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No costs order made; the application was simply dismissed.
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.
The application, therefore, lacks merit and is hereby dismissed.
he must show that there is an overwhelming probability that it will succeed.
The minor relevant considerations would be whether there are exceptional 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.
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.
Issues in the judgment
#The applicant is referred to inconsistently as 'applicant' and 'appellant' within the judgment
The case number of the application and of the appeal are not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.