[2022] KEHC 3266 (KLR)

Akiow v Republic (Criminal Appeal E031 of 2021) [2022] KEHC 3266 (KLR) (8 March 2022) (Ruling)

Neutral citation: [2022] KEHC 3266 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E031 of 2021

SN Mutuku, J

March 8, 2022

Between

Abdullahi Akiow

Applicant

and

Republic

Respondent

Ruling

1. The Appellant approached this court through a Chamber Summons Application dated December 3, 2021brought under certificate of urgency seeking the following orders:1. That this application be certified as urgent in the first instance.2. That the Applicant be granted bail pending the hearing of the substantive appeal.3. That this Honourable court does make any other order it deems fit in the circumstances.

2. The grounds in support of the application are found on the face of it and in the Supporting Affidavit sworn by Robert Serpepi Parnyamalo, advocate, for the Applicant. I have read the grounds in support of this application. In summary, the Applicant is arguing that bail is a constitutional right; that his appeal has overwhelming chances of success; that he is not a flight risk and that he was admitted to bail while the proceedings in the lower court were ongoing and he always honoured the terms of the bail; that he is asthmatic and his health is deteriorating while in prison; that he was convicted on March 24, 2021for defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act and sentenced to serve five years in jail; that his appeal may be rendered nugatory if he is not admitted to bail pending appeal given the number of years he is to serve sentence as he will have served a substantial amount of time and that the prosecution will not suffer prejudice if he were released on bail.

3. The application was argued on 21st February 2022. Mr. Serpepi reiterated the grounds advanced in support of the application and argued that the evidence adduced in the lower court has contradictions and inconsistencies. Mr. Mangáre, learned prosecution counsel urged the court to decline granting the appeal but instead fast track the appeal. He argued that the merits of the appeal cannot be known until it is argued; that there was no information as to where the Applicant resides to determine if he is a flight risk or not. He urged that in the event this court were inclined to grant bail pending appeal, then it should give condition for two sureties.

4. In a rejoinder, Mr. Serpepi submitted that the Applicant has already served close to a year since he was sentenced to serve five years. He argued that it is not known if the State will fast track the appeal. He told the court that the Applicant lives in Namanga and that he never missed attending court during the trial.

5. The provision of law that applies to bond/bail pending appeal is section 357 of the Criminal Procedure Code which provides that:(1)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:Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.(2)If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.”

6. In the case of Jivraj Shah v Republic[1986] eKLR the Court of Appeal articulated the applicable principles in granting bail pending appeal as follows:"There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision in Somo v Republic [1972] EA 476 which was referred to by this court with approval in Criminal Application No Nai 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued.”

7. Further, in the case of Chimambhai v Republic 1971 EA 343 the court observed as follows:"The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”

8. I have considered these authorities as well as Article 49 of the Constitution that guarantees bail to accused persons unless compelling reasons exist. As stated in Chimambhai case above, the case of an appellant lacks the presumption of innocence that is available to an accused person on trial, though it is possible that the conviction may have been erroneous or the punishment excessive.

9. Does the Applicant meet the threshold for grant of bail pending appeal? Are there exceptional or unusual circumstances in existence, upon which this court can fairly conclude that it is in the interest of justice to grant bail?

10. I have considered this application. The Applicant has been serving jail term for almost one year now. Given that he was jailed for five years, it is likely that he may serve a substantial amount of the sentence by the time this appeal is heard. However, I have read the record of the lower court proceedings. Without touching on the merits of this appeal, it is my considered view that the appeal be determined on merit. It is not lost to me that although this court was told that the Applicant suffers from asthma there is was medical report presented in court to that effect. I find no exceptional or unusual circumstances in existence upon which this court can fairly conclude that it is in the best interest of justice to grant the Applicant bail pending the appeal. For that reason I hereby decline to grant this application

11. It is possible that this appeal can be fast-tracked if the Applicant moves with haste and prepares the Record of Appeal and submissions and serve the same to the Respondent. The proceedings from the lower court are not long and there are no complex points of law. Consequently, the Applicant’s Chamber Summons dated December 3, 2021 is hereby dismissed. The Applicant is directed to prepare, file and serve the Record of Appeal and written submissions in the next 21 days from today. Upon service on the Respondent, the latter shall also have 14 days to prepare, file and serve Response and written submissions. This matter shall be mentioned on May 6, 2022 for compliance and further directions.

12. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED ON 8THMARCH 2022. S. N. MUTUKUJUDGE