[2017] KEHC 351 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL APPEAL CASE NO. 55 OF 2017

ANTONY KARIUKI MUKERE.............................APPLICANT

VERSUS

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

RULING

1. The application before this court made under the provisions of Section 357 of the Criminal Procedure Code; the applicant seeks to be admitted to bail pending the hearing of his appeal; the application is supported by an affidavit made by Anthony Kariuki Mukere;

2. Hereunder are the submissions made by Counsel for the applicant and Prosecuting Counsel for the State.

APPLICANTS SUBMISSIONS

3. The applicant was charged with the offence of obtaining by False Pretenses contrary to Section 313 of the Penal Code; that on diverse dates between 23rd March, 2013 and 13th April, 2013 the applicant had obtained the sum of Kshs.172,550/- from Power Technology Solutions Limited pretending that the said money would be used to pay workers; during the trial four (4) workers testified to having been paid;

4. The Charge Sheet was defective as the amount therein was not commensurate with the evidence on the amounts lost; the dispute revolves around approximately Kshs.70,000/-; the complainant had also admitted that the work had been done therefore there was no issue of falsehood;

5. On the 30/08/2017 he was convicted and sentenced to three (3) years imprisonment; being aggrieved by the judgment of the Senior Resident Magistrate sitting in Mukuruweini he filed the instant appeal against the conviction and sentence;

6. The trial court failed to appreciate that it was a commercial dispute and that there was no need to have initiated the criminal proceedings against the applicant;

7. Counsel urged the court to admit the appellant to bail as the hearing of the appeal may take time and the appellant may have served a substantial part of his term.

RESPONDENTS SUBMISSIONS

8. Prosecuting Counsel for the State Ms Gicheha did not oppose the application; and submitted that the applicant was an Assistant Chief and had been granted bail in the lower court; and that he had not breached the terms.

ANALYSIS

9. The facts of the case are that the applicant was tried and convicted before the Mukuruweini Senoir Resident Magistrate Hon.V. Ochanda for the offence of obtaining by false pretences; he was convicted and sentenced to a term of three (3) years imprisonment and being dissatisfied with this decision he filed the instant appeal; the appellant also filed the instant application for bail pending appeal;

10. The applicant contends that the Charge Sheet was defective; the defect is not on the face thereof but that it relates to the amount stated in the charge sheet not being commensurate with the evidence adduced; that the amount reflected on the Charge Sheet is Kshs.172,000/- whereas the sum adduced in evidence is in the sum of Kshs.70,000/-;

11. The principles upon which a court may grant applicant bail pending appeal and is cited in the case ofJIVRAJ SHAH vs REPUBLIC [1986] KLR 605 where it was held as follows;

“If it appears prima facie from the totality the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist”

12. It is trite law that a defect in the Charge Sheet does not lead to the automatic quashing of the conviction; the applicant will have to demonstrate to the court that will hear and determine this appeal that the defect occasioned a failure of justice or had prejudiced him;

13. The main consideration for bail pending appeal is whether the applicant has shown that his appeal has overwhelming chances of succeeding;

FINDINGS AND DETERMINATION

14. From the material placed before this court it is satisfied that the applicant has made out a prima facie case that his appeal is likely to be successful on account of the aforementioned substantial point of law;

15. Another consideration is that there is a likelihood of there being a delay in the hearing of the appeal and that the applicant may end up having served a substantial part of his term; this court finds that there is no good reason for depriving the applicant of his freedom; this court also finds that this is a suitable case for the exercise of its discretion in favor of the applicant.

16. The application is found to be meritorious and is hereby allowed.

17. The applicant may be released on bond pending the hearing of his appeal upon execution of a bond in the sum of Kshs.250,000/- together with one surety of a similar amount.

Orders Accordingly.

Dated, Signed and Delivered at Nyeri this 7th day of December, 2017.

HON.A.MSHILA

JUDGE