1.On September 9, 2020, Yusuf Agripa Ibrahim (Yusuf) was convicted by the Magistrates’ Court at Kericho, on a charge of stealing and sentenced to serve three (3) years’ imprisonment. He appealed against his conviction and sentence in the High Court at Kericho in Criminal Appeal No E001 of 2020 but his appeal was dismissed and the sentence and conviction were confirmed.
2.Yusuf who is dissatisfied with the judgment of the High Court has filed an appeal to this Court. He has already served one-year imprisonment, and has now filed an application in this Court seeking to be released on bail, pending the hearing of his appeal against the judgment of the High Court, and an order for stay of execution of the judgment of the High Court pending the hearing of the appeal.
3.In an affidavit sworn by his advocate Julius Mongare Motanya, in support of his application, it is deposed that Yusuf has an appeal that has high chances of success, and that due to the time that may be taken in hearing the appeal, he may finish serving his sentence before the appeal is heard, and his appeal shall thereby be rendered nugatory. It is also indicated that the applicant had spent time in remand prior to the sentencing, and that he is the sole bread winner of his family and has four small children to look after. The applicant has also exhibited a memorandum of appeal in which he faults the judgment of the High Court on four grounds.
4.The respondent has opposed the application through a replying affidavit sworn by Cheruiyot Mercy Chelangat, a prosecution counsel, as well as written submissions. In brief it is contended that: the applicant has not met the threshold for grant of the orders sought; grant of bail pending appeal is discretionary and the applicant’s innocence was compromised upon conviction; the applicant has not demonstrated any peculiar or extraordinary circumstance in his application to warrant grant of bail pending appeal; the appeal does not have overwhelming chances of success; there is no probability of the applicant serving the sentence before the appeal is determined; and that if the applicant is released on bail, the chances of him absconding are very high.
5.In Jivraj Shah v Republic  KLR 605 this Court stated the conditions for grant of bail pending appeal as follows:
6.At this stage, Yusuf having been convicted and sentenced to a term of imprisonment, his position has shifted. Bail is no longer a right for him but would only be granted pending appeal in very exceptional circumstances. On the face of the application and the supporting affidavit, Yusuf has not demonstrated any exceptional circumstance that would justify granting bail pending appeal. The claim that he was the sole breadwinner of his family and that he diligently attended court during trial, are not exceptional circumstance. His apprehension that he may finish serving his sentence before his appeal is heard is not anchored on any fact
8.Although Yusuf has exhibited a memorandum of appeal, he has not demonstrated, and we are not persuaded, that his appeal has overwhelming chances of success such as to justify his release on bail. As regards the prayer for stay of execution, in its judgment the High Court upheld the judgment of the lower court and dismissed the applicant’s appeal. This is a negative order not capable of execution, and therefore the prayer for stay of execution of the judgment of the High Court is misconceived.
9.In light of the foregoing, we find no merit in this application. It is accordingly dismissed.