Wafula v Republic

Among the questions raised are whether detention without trial remains permissible; whether a person who was allegedly never called upon to take plea could lawfully be convicted and sentenced for felony oences; and whether the right to a fair trial can be limited in the manner in which the proceedings against him were conducted. The applicant further submits that unless execution of the sentence is suspended, he may serve a substantial portion of the custodial sentence before the intended appeal is heard and determined, thereby rendering the appeal nugatory. 4. The application was opposed by the respondent through a replying adavit sworn by Sarah Ogweno, Senior Assistant Director of Public Prosecutions, on 13th August 2026, alongside written submissions led on the same date. The respondent maintains that although this Court has jurisdiction under Rule 5(2)(a) to suspend execution of a sentence or admit an appellant to bail pending appeal, the applicant has not demonstrated an arguable appeal with overwhelming chances of success, exceptional circumstances, or the likelihood of suering prejudice if the orders sought are not granted. 5. When the application came up for hearing on 19th August 2026, learned counsel Mr. Otieno appeared for the applicant, while Ms. Sarah Ogweno, Senior Assistant Director of Public Prosecutions, appeared for the respondent. 6. Highlighting the applicant’s written submissions, Mr. Otieno submitted that the intended appeal raises a fundamental question as to whether a person who had not been arrested, arraigned, or called upon to plead could properly be convicted and sentenced. Counsel further submitted that the right to a fair trial under Article 50 of the Constitution was implicated, and that the applicant’s continued incarceration would occasion serious prejudice as he risked serving a substantial part of his sentence before the appeal could be heard. 7. In opposition, Ms. Ogweno relied on the respondent’s replying adavit and written submissions. She submitted that the applicant had not demonstrated an arguable appeal with overwhelming chances of success or exceptional circumstances warranting the grant of bail. Counsel maintained that the applicant had deliberately absented himself from the trial, making his trial and sentencing in absentia not an unusual circumstance. She relied on the cases of Daniel Dominic Karanja v Republic [1986] KECA 37 (KLR) and Makwata & another v Republic [2024] KECA 134 (KLR). 8. In the alternative, Ms. Ogweno urged the Court to have the intended appeal listed for hearing on a priority basis. Relying on Makwata & another v Republic (supra), she submitted that the prejudice of an appellant serving a substantial portion of a sentence before the appeal is heard can be addressed by expediting the appeal. The respondent’s position was therefore that the present application ought to be dismissed, with the appeal being fast-tracked. 9. We have considered the application, the adavits on record, the written and oral submissions, the ruling of the High Court dated 9th July 2026, and the material placed before the Court. The jurisdiction invoked by the applicant is under Rule 5(2)(a) of the Court of Appeal Rules. It is settled that this jurisdiction is discretionary and is exercised judicially, having regard to the circumstances of each case. 10. The principles applicable to an application for bail pending appeal have been restated in decisions, including Dominic Karanja v Republic [1986] KLR 612, Jivraj Shah v Republic [1986] KLR 605, and more recently in Makwata & another v Republic [2024] KECA 134 (KLR). Ordinarily, the Court considers whether the intended appeal is arguable, and whether, absent the orders sought, the appeal may be rendered nugatory, or the applicant may suer prejudice that cannot adequately be remedied after the appeal is heard. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2065/eng@2026-09-25 2

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11. At this interlocutory stage, we are not called upon to determine the merits of the intended appeal. It is sucient that the applicant demonstrates a bona de point deserving consideration by the appellate Court. Having considered the material placed before us, we are satised that the intended appeal is arguable. The circumstances in which the applicant was tried in absentia, the issues surrounding his alleged failure to be arraigned and called upon to plead, and the question of whether the proceedings accorded with constitutional and statutory fair trial requirements are matters that properly call for consideration on appeal. 12. We are mindful that the High Court considered these matters and concluded that the applicant had absconded, and that the trial court was entitled to proceed in his absence. The High Court considered Article 50(2)(f) of the Constitution and the circumstances under which a trial may proceed without the accused. We express no nal view on those matters, as they fall to be considered in the appeal upon the full record. The High Court's adverse conclusion does not, at this stage, deprive the intended appeal of its arguability. 13. The second consideration is whether the appeal may be rendered nugatory if the orders sought are withheld. The respondent itself has acknowledged, through its reliance on Makwata & another v Republic (supra), that where an appellant is likely to serve a substantial portion of a sentence before the appeal is heard, the Court may address the prejudice either by granting bail or by expediting the appeal. 14. In the present case, the applicant faces a custodial sentence, including a term of ve years’ imprisonment on Count III for malicious damage to property, in addition to the custodial consequences arising from the other counts. The intended appeal raises questions going to the legality and regularity of the proceedings culminating in that sentence. Consequently, if the applicant remains incarcerated during pendency of the appeal, he may serve a substantial portion of the sentence before the appeal is determined. 15. We have considered the respondent’s submission that the appropriate course is simply to expedite the appeal. While that is a course recognised in Makwata & Another v Republic (supra), the circumstances of every application must be considered on their own facts. In the present matter, having found that the intended appeal is arguable and that there is a real risk of substantial prejudice if execution of the sentence continues, we consider it just and appropriate to preserve the applicant’s position pending appeal, while simultaneously ensuring the appeal is heard expeditiously. 16. We therefore nd merit in the application. The interim order issued by this Court on the date of the hearing, suspending execution of the sentence, was properly made to preserve the subject matter of the intended appeal. We hereby conrm and extend the order suspending execution of the sentence pending the hearing and determination of the appeal. 17. To ensure the matter is brought to nality without unnecessary delay, the applicant’s intended appeal shall be fast-tracked. The Deputy Registrar of this Court at Kakamega shall cause the appeal to be placed before the Court for hearing on a priority basis during this term. 18. Consequently, the orders of this Court are as follows: a. The execution of the sentence imposed upon the applicant by the High Court at Busia (Mohochi, J. ) in the ruling delivered on 9th July 2026 in Criminal Revision No. E003 of 2026 is hereby stayed and suspended pending the hearing and determination of the intended appeal from the said ruling. b. The Deputy Registrar of this Court shall undertake case management of the intended appeal on a priority basis, and setthe appeal for hearing during this term. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2065/eng@2026-09-25 3

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c. There shall be no order as regards the costs of the Notice of Motion dated 23rd July 2026. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. P. NYAMWEYA ……………………………. 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 DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2065/eng@2026-09-25 4

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