[2018] KEHC 3583 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

HCCRA NO. 10 OF 2018

ALPHONSE OMBAGA OBAGA.......APPELLANT/APPLICANT

=VRS=

REPUBLIC................................................................RESPONDENT

{Being an Appeal from the Conviction, Judgement and Sentence of Hon. P. W. Wasike – Resident Magistrate delivered at Keroka on the 18th day of May, 2018 in Keroka PM Cr. Case No. 1394 of 2016}

RULING

By the Notice of Motion dated 21st May, 2018 filed herein on even date the Applicant seeks an order that he be released on bond pending hearing and determination of the appeal filed on 28th June 2018 and further that this Court do order that execution of the judgement and sentence appealed against be suspended or stayed pending hearing of the appeal.

The application which is supported by the affidavit of Alphonse Ombaga Obaga sworn on 21st May 2018 is premised on grounds that: -

(a) “The Applicant herein was found guilty and convicted of the offences of Obtaining by false Pretense, Making a Document without Authority, Uttering a document with intent to defraud and forgery on the 18th May, 2018; vide KEROKA PMC’S Cr. 1394 of 2016 by Hon. P. W. WASIKE, Resident Magistrate.

(b) Pursuant to the conviction in terms of (a) above, the Applicant was condemned to suffer 6 years imprisonment, the same being the longest as the sentences were to be served concurrently.

(c) The Applicant has since filed and/or lodged an Appeal against the conviction and sentence of the said court vide CRIMINAL APPEAL NO. 10 OF 2018 ALPHONSE OMBAGA OBAGA VS REPUBLIC.

(d) That the Appeal so far lodged, raises salient and pertinent issues of law, namely;

1. The Trial Magistrate erred in convicting the Appellant on Counts 2 and 4 when no evidence was tendered to suggest that the Appellant made, forged and/or participated in the making thereof of the alleged false and/or forged documents.

2. The Learned Magistrate erred in law and fact in convicting the Appellant on Count 3, a charge of uttering a false document when the person the alleged false document was uttered to was never called to testify thus occasioning grave miscarriage of justice.

3. The Trial Magistrate erred in law and fact in disregarding the findings and/or opinion of Pw5, a document examiner thus arriving at a finding not well based on Law.

(e) THAT the Applicant herein had hitherto been released on Bond and attended his Trial up to and including the judgement. In a nutshell, the Applicant’s antecedent allows the Applicant to enjoy bail terms.

(f) THAT the Applicant undertakes to attend court during the hearing of the Appeal and/or at such time(s) as this Honourable Court may so direct.

(g) THAT the Applicant is likely to suffer and/or serve a substantial portion of his sentence, before the instant Appeal is finalized.

(h) THAT the Applicant is employed and is the sole breadwinner for his young family and may lose his job if he still in prison.

(i) THAT the Applicant is likely to suffer substantial loss, if the Appeal so far filed, succeeds, upon having served a substantial portion of sentence.

(j) THAT the instant Application ought to be allowed in the interest of justice.”

At the hearing, Miss Shilwatso, Learned Advocate, for the Appellant/Applicant relied solely on the above grounds and the supporting affidavit and Miss Okok, the Learned Prosecution Counsel appearing for the State did not oppose the application.

Bail after entering an appeal is provided for under Section 357 (1) of the Criminal Procedure Code which states:-

(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.”

Be that as it may the discretion whether or not to grant bail pending hearing of the appeal lies with the Court. However and as always the discretion must be exercised judicially and with certain accepted principles in mind. Those principles as set out in the case of Jivraj Shah =V= Republic [1986] KLR 605are:-

i. The existence of exceptional or unusual circumstances upon which the Court of

ii. 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 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.

iii. 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 the weight and relevance of the points to be argued.

The onus to prove that the Applicant comes within those principles lies upon him because as was held in Chimambhai =V= Republic (No. 2) [1971] EA 343 the Applicant no longer enjoys the presumption of innocence.

The Applicant in the instant application has not alluded to any exceptional circumstances. He has however pleaded that his appeal has high chances of success that he is not a flight risk and that his family is likely to suffer should this application be refused. He has also stated that he is likely to serve a substantial portion of his judgement before the appeal is heard and that will amount to substantial loss.

The Court has to consider all the circumstances in a case before it can grant the application. In this case other than stating that he is the sole bread winner and that his children are likely to suffer, the Applicant has not demonstrated the existence of exceptional circumstances. Moreover, the aforesaid grounds even taken with the other grounds are not enough. Neither is the ground that he is not a flight risk and given that the Courts have now established timelines within which cases and appeals are heard and determined the ground that one shall have served a substantial part of his sentence before the appeal is heard can no longer hold.

As for the ground of the appeal having overwhelming chances of success, it is difficult to establish the same on the proceedings provided as the same appear to be incomplete and have not been certified. The application has no merit and is dismissed.

The Advocate for the Appellant is directed to file and serve a complete Record of Appeal within twenty one days of this ruling. The Deputy Registrar shall also call for the Lower Court File within the same period and thereafter place the appeal before the Judge for admission so as to expedite the same.

It is so ordered.

Signed, dated and delivered in open Court this 26th day of July, 2018.

E. N. MAINA

JUDGE