Protus Marigo Sarara v Republic

supporting affidavit he swore on the said 5 th February 2026, the applicant avers that he has an appeal with “high chances of success” because the Page 2 of 4

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conviction and sentence were based on wrong principle of law as the prosecution failed to satisfy the ingredients of murder and that he is “likely to serve a substantial part of the sentence before the determination of the appeal and hence will render the appeal nugatory.” He has attached a copy of the memorandum of appeal filed and asserts that “there are no compelling reasons to deny [him] bond pending appeal.” He also swears that he has two wives, the first with 5 children and the other with a single child, who depend on him “for care and provision of the necessities of life.” In addition, he has parents aged over 90 years old and sickly who depend on him for care and provision of medicine who are suffering immensely in his absence. Urging the application before us, Mr. Mogikoyo, learned counsel for the applicant sought to show that the appeal has overwhelming chances of success and adverted to the grounds in the memorandum of appeal. On her part, Ms. Matiru the learned Assistant Director of Public Prosecutions contended that the application lacks merit as it does not have overwhelming chances of success; it is likely to be heard and determined within a year, and the applicant is not in any medical emergency of his own. Page 3 of 4

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The law on grant of bail pending appeal is settled. An appellant who is held upon conviction by a competent court may only be admitted to bail in unusual or exceptional circumstances. See JIVRAJ SHAH Vs. REPUBLIC [1986] eKLR. Post-conviction bail is not granted as of right merely by seeking it. To succeed, an applicant must show that his appeal has overwhelming chances of success. Mere arguability will not do because there is a prima facie presumption that the conviction under which the prisoner serves sentence was properly entered. An important consideration to be borne in mind is the risk that the applicant may have served the entire or a substantial portion of his sentence before the appeal is heard. In the present case, the applicant was sentenced to 25 years imprisonment. That is a long duration and we agree with Ms. Matiru that his appeal could well be heard within a year or so. At any rate, he will definitely not have served a significant, less still a substantial, portion of that sentence before his appeal is heard and determined. As to the hardship that his wives, children and parents will undergo while the applicant remains in custody, we respectfully must state that they do not Page 4 of 4 amount to exceptional or

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unusual circumstances pending that would tilt in Page 5 of 4 favour of grant of bail

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appeal. This has been the position of this Court in a long line of authorities including SOMO Vs REPUBLIC [1972] EA 476 and DOMINIC KARANJA Vs. REPUBLIC [1986] eKLR. The asserted absence of compelling reasons for denial of bail that has been urged is a test that applies in pre-trial bail where the accused person has the benefit of the presumption of innocence and is thus entitled as of right to bail pending trial, as of right. The applicant lacks that availing presumption having been convicted by the High Court, and so the argument fails. Ultimately, we find the motion to be devoid of merit. It is dismissed. Dated and delivered at Nairobi this 25th day of September, 2026. P. O. KIAGE ……………….…….………… JUDGE OF APPEAL R. NGETICH ……………………………… JUDGE OF APPEAL RADIDO S. OKIYO ………………...…………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Page 6 of 4

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DEPUTY REGISTRAR Page 7 of 4

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