[2014] KEHC 7707 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISCELLANEUS CRIMINAL APPLICATION NO. 320 OF 2013

BERNARD MOSES ONGIGE....................................................APPLICANT

VERSUS

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

(From original conviction and sentence in criminal case Number 2 OF 2010 in the Chief Magistrate’s Court at Nairobi – D. N. Mulekyo (Ag. C.M.) on 28/8/2013)

R U L I N G

This application was brought by way of Chamber Summons dated 30th September 2013, under the provisions of Article 51(1) of the Constitution 2010 and Section 356 of the Criminal Procedure Code. It mainly seeks that the court be pleased to admit the applicant to bail pending the hearing and determination of his criminal appeal No. 303 of 2013 at Nairobi.

The appeal arose out of the applicant’s conviction on a charge of making a fraudulent payment from public revenue for goods not supplied, contrary to Section 45(2) (a)(ii) as read with Section 48 of Anti-Corruptionand Economic Crimes Act No. 3 of 2003 (ACECA). This was an alternative count to the main charge in count II of conspiracy to commit an offence of corruption contrary to section 47A (3) as read with section 48 of the Anti-Corruption and Economic Crimes Act, No.3 of 2003. He was sentenced to pay a fine of Ksh. 800,000 and in default to serve 2 years imprisonment.

Mr. Gachaba learned Counsel for the applicant filed written submission in which he argued that the prosecution of the applicant was unlawful and null and void ab initio as it was contrary to the provisions of the Anti-corruption and Economic crimes Act, 2003. That no evidence was exhibited in court to show that any investigation report was made to the Attorney-General as required under section 35of theACECA.

Second, it was his contention that the investigations were ultra vires the provisions of Section 5, 102, 103, 104and105of thePublic ProcurementandDisposal Act 2005 (PP&DA)which Act being the latter of the two, duly repealed the ACECA. Third that the impugned payment was not fraudulent as it was pursuant to a valid contract for the sale of goods between School Equipment Production Unit and Vulcan Lab Equipment Limited within the meaning of the Sale of Goods Act and the Law of Contracts Act.

Fourth that the applicant, having been acquitted of conspiracy to commit an offence in the principal count no. II could not thereafter be found guilty in an alternative count for fraudulent payment.

Finally Counsel also urged that there existed unusual and exceptional circumstances that the court should consider and that there was anticipated delay in the hearing of the appeal. The applicant was ailing and required special care and diet which he could not access in prison as confirmed by the prison doctor.

In view of the foregoing, Counsel urged that the appeal had overwhelming chances of success and the applicant should therefore, be considered for bail pending appeal.

Learned State Counsel Miss Nyauncho in her written response opposed the application on behalf of the respondent on grounds that the appeal did not have overwhelming chances of success as the prosecution discharged its obligation conclusively. She argued that there was sufficient evidence on record to support the conviction and sentence.

The learned state counsel submitted that even though the applicant was acquitted of the offence of conspiracy to commit an offence in count II, he was found guilty of the alternative count for making a fraudulent payment. She contended that the learned trial magistrate held that the offence of conspiracy ended with the payment, and gave way to the crystallization of the alternative charge of fraudulent payment from public revenue for goods not supplied which in turn led to her finding that the applicant was guilty.

I have read the proceedings and the judgment of the learned trial magistrate. The principles that guide the court in applications of this nature were canvassed in the case of Jivraj Shah vs. Republic [1986] LLR 605, to which Mr. Gichaba directed me. In the said case the Court of Appeal held inter alia that:

“1. The principle consideration in an application for bail 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.”

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 substantial part of it will have been served by the time the appeal is heard, conditions of granting bail will exist.

This application therefore, hinges on the likely success of the pending appeal and on the likelihood of the appellant serving the sentence before the said appeal is heard.

A co-accused of the applicant admitted that he and the company received the sum cited, and that this was founded on a contract between him and the company on one hand and the public body (SEPU) on the other hand, which is alleged to have paid the said sum. There is evidence that some of the officers of the complainant public body may have acted un procedurally in approving and making payment of the said sum. On the evidence presented, the applicant is not alleged to have participated in the deliberations that led to the approval and, or payment of the said sum, and in the judgment of the learned trial magistrate, the contract leading to the said payment was not faulted.

In his evidence, the investigating officer did not know whether or not the applicant was just an artisan, or he held a higher position in the company. He also did not know whether or not there was a benefit conferred to the appellant in this entire process.

The issues argued by Mr. Gichaba raise fundamental questions of law, which should be canvassed in the main appeal. Without considering the merits and demerits of the pending appeal, it does appear prima facie, from the totality of the circumstances of this case that the appeal is likely to be successful and that meanwhile the sentence or substantial part of it will have been served by the time the appeal is heard.

For the foregoing reasons and without appearing to pre-empt the intended appeal, I find that the application has merit and is granted.

SIGNED DATEDandDELIVEREDin open court this 26th day of February 2014.

L. A. ACHODE

JUDGE