[2023] KEHC 26412 (KLR)

Aduke v Republic (Criminal Appeal E059 of 2023) [2023] KEHC 26412 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26412 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E059 of 2023

RE Aburili, J

December 11, 2023

Between

Lavender Akoth Aduke

Appellant

and

Republic

Respondent

Ruling

1. The application dated 7th November 2023 was brought under Section 357 of the Criminal Procedure Code and all other enabling provisions of law. The Appellant Lavender Akoth Aduke seeks for orders that the Honourable Court be pleased to admit her to bail pending hearing and determination of the instant appeal.

2. The application was premised on the grounds that the Appellant was charged with two others in Criminal Case No. 78 of 2019 before the Chief Magistrate’s Court at Kisumu. That the Appellant was charged with the offences of stealing by servant contrary to section 268 (1) of the Penal Code, Conspiracy to defraud contrary to section 317 of the Penal Code and Making false documents contrary to section 357 (a) of the Penal Code.

3. That the Appellant was convicted by the Subordinate Court and has filed the instant appeal.

4. The appellant claims that she has good grounds of appeal with overwhelming chances of success. That the appellant is suffering from a chronic medical condition, Chronic Bronchitis and Allergic Conjunctivitis which is getting worse as it is triggered by the harsh prison conditions. That she is a single mother of two children aged 16 and 6 years respectively who are currently suffering in her absence.

5. The application is supported by an affidavit sworn on 7th November 2023 by the appellant.

6. In response, Mr. Onanda for the respondent submitted that the appellant received consecutive sentences amounting to nine years. Mr. Onanda also filed the medical report from prison showing that the appellant was unwell.

7. In her submissions, the appellant submitted that she was convicted purely based on suspicion and circumstantial evidence and that the prosecution failed to prove in whatsoever manner that she had the intentions or the commission in committing the alleged offences.

8. The appellant further submitted that no evidence was brought forth by the prosecution to prove any liability on her part and that she was solely arrested based on uncorroborated audit reports that were not produced during hearing or its veracity tested during the trial.

9. It was her submission that none of the prosecution witnesses could specifically state what the audit report connected her to the offences and that there was no lifestyle audit that showed that she had gained from the proceeds of the alleged offence either by acquisition of properties or monies in her bank account.

10. The appellant submitted that during the trial, she fulfilled and complied with all conditions of bail placed by the trial court without fail and that she was the bread winner of her family where she was a single mother and cooperated with the court in having the matter determined in good time.

11. It was submitted that she suffered from a chronic medical condition being Chronic Bronchitis and Allergic Conjunctivitis which was getting worse by the day due to the fact that the present prison conditions triggered her night attacks and chest pains risking her health condition.

Analysis and Determination 12. This court has considered the Notice of Motion Application dated 7th November 2023, the respondent’s response and submissions by the appellant.

13. Article 49(1)(h) of the Constitution provides that: -An accused person has the right …(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

14. Unlike an accused person facing trial, the appellant has already been convicted and has lost the presumption of innocence. Therefore, a different test applies to bail pending the hearing of an appeal.

15. Section 357(1) of the Criminal Procedure Code provides for bail pending appeal in the following manner:“After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal.”

16. Judicial decisions show that, in determining whether or not to grant bail pending appeal, the court should consider: -i).Whether the appeal has overwhelming chances of success. See Ademba vs. Republic [1983]KLR 442, Somo vs. R [1972] EA 476, Mutua vs. R [1988] KLR497;ii).Whether there are exceptional or unusual circumstances to warrant exercise of court’s discretion into releasing the appellant on bail. See Raghbir Singh Lamba vs. R [1958] EA 37; Jivraj Shah vs. R [1986] eKLR; Somo vs. R (supra); Mutua vs. R (supra);iii).Whether there is a high probability of the sentence being served before the appeal is heard. See Chimabhai vs. R [1971] EA 343.

17. In the case of Masrani v R [1060] EA 321, it was held that: -“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”

18. This court agrees with the position in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR where it was held that: -“The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:“(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.(3)The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”

19. The Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated that:“a)The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the Applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.b)The previous good character of the applicant and the hardships, if any, facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners.c)A solemn assertion by an Applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.d)Upon considering the relevant material in this case, there was no overwhelming chance of the appeal being successful

20. This court has considered the decisions above which are clear that it is in the discretion of the court to grant bail pending appeal, which discretion should be exercised judiciously. In such an application, the appellant has the burden of establishing that the appeal has high chances of success or has a high likelihood of serving a substantial part of the sentence before hearing the appeal.

21. In the application herein, only the sentencing ruling was availed but not the proceedings. This court was not in a position to peruse the record to establish whether an arguable appeal with high chances of success have been disclosed by the grounds of appeal.

22. The Appellant was sentenced on 28th September 2023 to a cumulative sentence of 9 years’ imprisonment being 5 years on Count 1 of stealing by servant, 2 years or a fine of Kshs. 200,000 in default for Count 2 of Conspiracy to Defraud and a fine of Kshs. 2,000,000 or 2 years’ imprisonment in default. Therefore, there is no likelihood of her having served a substantial part of the sentence before the appeal is heard. Furthermore, this court’s policy of expeditious disposal of cases does not create the possibility of delay in the hearing of the appeal.

23. Additionally, this court observes that the Appellant has not demonstrated the existence of exceptional or unusual circumstance to warrant grant of bail pending appeal. The fact that the Appellant did not breach bail conditions in the trial court, is of good character, she is the bread winner of her family, and cooperated with the court in having the matter determined in good time are not exceptional circumstances to warrant her being admitted to bail pending appeal. SeeDominic Karanja v Republic(supra).

24. The appellant has produced medical documents to the effect that she suffers from Chronic Bronchitis and Allergic Conjunctivitis triggered by the prison conditions. However, even the medical report from Kodiaga Prison does not state that the Prisons Service is not in a position to manage the appellant’s condition. On the contrary, the medical report provides measures undertaken by the Prisons Service in managing the appellant’s health conditions.

25. The appellant has also deposed and submitted that she has two young children under her care and that she is their sole breadwinner as she is a single mother. That may be so but that is not an exceptional circumstance that would sway this court to grant her bail pending appeal.

26. The only reason, however, that would make this court exercise discretion in her favour is the fact that she has not been supplied with certified copies of proceedings and judgment in the lower court and it is not clear whether the same have been typed and will be availed expeditiously to enable this court admit the appeal and hear it as soon as possible.

27. In the premises, I give the appellant the benefit of doubt and allow her application. I order that the appellant shall be admitted to bail pending appeal on condition that she signs for personal bond of Kenya shillings Five Hundred thousand kshs. 500,000 plus one surety of similar amount or deposit into court cash bail of Kenya Shillings One hundred thousand kshs 100,000.

28. The appellant is also directed to ensure that she files and serves a complete record of appeal together with written submissions within 30 days of today.

29. Mention on 24/1/2024 to confirm availability of the trial court file. The appellant to attend court then.

30. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE