Okwomi & another v Republic

Court, they shall continue to abide by any terms and conditions that may be imposed and shall not abscond. 4. The 1st applicant avers that she is a 64-year-old woman with serious cardiac complications. She relies on a medical report which indicates the presence of inferoseptal left ventricular hypokinesis suggestive of anterior myocardial ischaemia, mild mitral regurgitation, and reduced cardiac function. She contends that her condition necessitates urgent specialised medical attention and continued treatment in an environment outside the prison setting. 5. The 2nd applicant maintains that he was not present at the scene of the alleged oence. Both applicants assert that they are law-abiding citizens with xed places of abode and do not pose a ight risk. They further contend that the intended appeal raises serious questions of law, which, in their view, have strong prospects of success. Among the grounds advanced are the alleged reliance on uncorroborated evidence of a single witness, contradictions in the prosecution evidence, reliance on a witness who did not exist, failure to give due consideration to the alibi defence, and the purported reliance on submissions in place of evidence. The applicants contend that unless the present application is allowed, they stand to suer substantial prejudice by serving a signicant portion of their respective sentences before the appeal is heard and determined. 6. At the hearing of the application, the applicants were present virtually and were represented by learned counsel, Mr. Chemwok. They relied entirely on the application, the grounds set out therein, the supporting adavit, and written submissions, which were orally highlighted. The gist of the applicants’ submissions is that the intended appeal has overwhelming chances of success. It was contended that the grounds of appeal raise serious issues as to whether the prosecution proved its case beyond reasonable doubt. Further, citing several authorities, it was contended that there are exceptional circumstances justifying grant of bail pending appeal. 7. In opposition to the application, Mr. Mark Mugun, learned Principal Prosecution Counsel, submitted that the applicants had failed to demonstrate that the intended appeal has overwhelming chances of success and that the evidence of the single witness was unreliable. 8. Learned counsel contended that the evidence adduced against the applicants was both direct and circumstantial, and that the evidence connecting them to the oence was based on recognition by voice and physical appearance, which, counsel submitted, is generally regarded as more reliable and satisfactory than identication of a stranger. Counsel further submitted that it is settled law that a fact may be established on the evidence of a single witness. He pointed out that the applicants were convicted on 27th January 2026 and sentenced to terms of twelve (12) and eighteen (18) years’ imprisonment, respectively, and argued that they were unlikely to serve a substantial portion of their sentences before the appeals are heard and determined. Counsel therefore maintained that no prejudice would be occasioned to the applicants by awaiting the hearing and determination of their appeals. 9. Relying on the principles enunciated in Jivraj Shah vs Republic [1986] eKLR, learned Prosecution Counsel submitted that the applicants had failed to satisfy the requisite threshold for the grant of bail pending appeal. Counsel argued that the fact that the applicants had been admitted to bail during the trial and had complied with the attendant terms did not, of itself, warrant the grant of bail pending appeal. Counsel further submitted that following their conviction and sentence, the applicants’ legal status had materially changed, as the presumption of innocence no longer availed them. 10. It is submitted that as convicts, there is reasonable apprehension that the applicants may abscond. Additionally, the respondent argues that no exceptional and unusual circumstances have been demonstrated by the applicants to warrant the grant of bail pending appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2052/eng@2026-10-02 2

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11. We have carefully considered the application, the respective submissions of the parties, the authorities cited, and the applicable law. The jurisdiction of this Court to release a convicted person on bail pending the hearing and determination of the appeal was set out in the case of Jivraj Shah vs Republic (supra) thus: “The most important issue here is if the appeal has such overwhelming chances of success that there is no justication for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] EA 476. A solemn assertion by an applicant that he will not abscond if he is released is not sucient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.” 12. The principles in Jivraj Shah were further elaborated in Daniel Dominic Karanja vs Republic [1986] KECA 37 KLR where the Court stated: “The most important issue here is if the appeal has such overwhelming chances of success that there is no justication for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances.” 13. We note that the applicants have raised grounds, among others, that the prosecution relied on uncorroborated evidence of a single witness, contradictions in the evidence and that their alibi defence was not given due consideration. 14. Upon our consideration of the proceedings and the judgment of the trial court, and without in any way pre-empting the determination of the pending appeal, we are not persuaded, at this stage, that we can hold that the appeal has overwhelming chances of success. We recognise that the appeal may raise arguable issues; nevertheless, mere arguability does not, in itself, meet the threshold for the grant of bail pending appeal. At this stage, we can only say that the grounds should be argued at the hearing, without saying more so that we do not prejudice the bench that will hear and determine the appeal. 15. On the question of exceptional or unusual circumstances, the applicants contend that the 1st applicant, a 64-year-old woman, suers from serious cardiac complications which require specialised medical care outside the prison setting. The 2nd applicant, for his part, maintains that he was not at the scene of the oence. Both applicants further assert that they are law- abiding citizens with xed places of abode and are not ight risks. They also contend that the appeal may take a considerable period to be heard and determined, and that their continued incarceration would occasion them grave injustice. 16. These assertions, however, are neither novel nor unfamiliar to this Court in applications of this nature. Similar considerations have been advanced and addressed by this Court on numerous occasions, and were settled in Jivraj Shah vs Republic (supra). As regards the 1st applicant’s medical condition, while we are sympathetic to her circumstances, ill health, in itself, does not constitute an exceptional circumstance where adequate medical facilities are available to prisoners. The applicants have not placed before us sucient evidence to demonstrate that the prison medical facilities, including the established referral system, are incapable of providing the 1st applicant with the requisite treatment and care. In the circumstances, there is no basis for us to depart from the settled position of the law. 17. Turning to the period of imprisonment imposed by the trial court, the applicants were convicted on 27th January 2026 and sentenced to twelve (12) and eighteen (18) years’ imprisonment, respectively. Considering the length of the sentences imposed, we are satised that the applicants are unlikely to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2052/eng@2026-10-02 3

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have served a substantial portion thereof by the time the appeal is heard and determined. In the result, we nd that the applicants have not satised the requisite threshold for the grant of bail pending the hearing and determination of the appeal. 18. For the foregoing reasons, we nd no merit in the application dated 11th May 2026 and accordingly dismiss the same. DATED AND DELIVERED AT ELDORET THIS 2ND DAY OF OCTOBER, 2026. M. GACHOKA C.Arb, FCIArb. …….…………………..………… JUDGE OF APPEAL NDUMA NDERI …………………...…………… JUDGE OF APPEAL L. M. NDOLO ………………….……….…… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2052/eng@2026-10-02 4

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