[2017] KEHC 1426 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 26 OF 2017

CHARLES KURIA…………….......………………..…….APPELLANT

-VERSUS-

REPUBLIC……………….....……….……………............RESPONDENT

(An appeal from the conviction and sentence of the Principal Magistrate’s Court (Andayi W. F.) at Kerugoya, Criminal Case No. 621 of 2012 delivered on 3rd April, 2017)

RULING

1. The applicant Charles Kuria Ngari was charged before the Chief Magistrate’s Court Kerugoya with the offence of kidnapping contrary to Section 259 of the Penal Code and demanding money with menaces contrary to Section 362 of the Penal Code vide Criminal Case No. 621 of 2012.

2. The applicant denied the charges. After a full trial he was found guilty on both charges and sentenced to serve three years imprisonment on each count, the sentence to run concurrently.

3. The Appellant was dissatisfied with the conviction and sentence and filed a petition of appeal. He then filed this application for bail pending appeal. The application is based on the grounds that:-

(a) The applicant has already filed his appeal no. 26/2017.

(b) That the applicant’s appeal has overwhelming chances of success.

(c) That the applicant is likely to serve substantial part of his sentences or complete his sentence before his entire appeal is heard and determined this suffers immensely.

(d) That the appellant/applicant was on bond at the lower court.

(e) That the applicant is willing to abide by such terms as shall be set by this honourable court and to appear at his trial or whenever required by this honourable court.

It is also supported by the affidavit of the applicant sworn on 25th May, 2017. The applicant is stating that he has filed an appeal which has high chances of success and if not released on bail pending appeal by the time the appeal is determined he will have served a substantial part of the sentence. He further depones that the lower court had released him on bond and he complied with the terms. He will abide by any conditions that the Court may set.

The State did not oppose the application. I will, however, consider the application on its own merits. Bail pending appeal is provided for under Section 357 (1) of the Criminal Procedure Code Cap 75 Laws of Kenya:-

“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:

The Court has discretion to release the applicant on bail. Such discretion must be exercised judicially and based on consideration of various factors. These include:-

(a) Whether the appeal has overwhelming chances of success.

(b) There are exceptional or unusual circumstances to warrant the court’s exercise of discretion.

(c) There is a high probability of the sentence being served before the appeal is heard.

In determining this application, the Court must bear in mind that unlike in bail pending trial, the applicant is lawfully held after a trial and a conviction. Though the applicant has a right to bail pending appeal, the Court must weigh the possibility that if the appeal is not determined in his favour, there may be an order that he be returned to prison to complete the sentence. The Court would be faced with a dilemma. This makes the consideration of the appeal having overwhelming chances of success a key factor in determining the application. The Court would then consider whether there are exceptional circumstances to justify the release of the appellant on bail pending trial. The applicant having been convicted by a court with competent jurisdiction to try him does not enjoy the presumption of innocence. The leading authority on this subject is the case of Somo -V- Repulbic (1972) E.A. 476 where the High Court in refusing to grant bail held that the most important ground in deciding whether or not to grant bail is whether the appeal has an overwhelming chances of being successful and that there were no exceptional or unusual circumstances to justify the grant of bail. Having considered the grounds of appeal, the evidence which was placed before the trial magistrate and his findings, I am of the view that it may not be concluded at this stage that the appeal has overwhelming chances of success. That the Applicant may serve the sentence before the appeal is heard and determined is not supported. The Applicant has already filed his appeal which may be heard and determined within a reasonable time. I am of the view that there are no special circumstances to warrant me to exercise discretion in favour of the Applicant.

4. In granting bail the Court must strike a balance of proportionality in considering the rights of the applicant and the public interest on the other hand. On one hand it is the duty of the Court to ensure that the guilty are punished to ensure the protection of the society and at the same time uphold the rights of persons charged. These principles are predicated on the fact that once an accused person has been convicted of an offence by a court of competent jurisdiction he ceases to enjoy the right to the presumption of innocence. He is deemed to be lawfully convicted unless and until the conviction is overturned on appeal.

5. I am persuaded by the finding in the authority of Somo -V- R (supra) that the principles for granting bail pending appeal have not been established in this application. It was held in the case that the applicant must demonstrate the existence of overwhelming chances of success. The Applicant ought to persuade the Court that his or her appeal is so strong, so meritorious, that at the end, the probabilities will favour acquittal. To discharge this burden the applicant will need to raise some critical issue of law or an issue as to the mode of the application of the evidence. This the applicant has not demonstrated. I am of the view that the application lacks merits and is dismissed.

Dated and delivered at Kerugoya this 9th day of November, 2017.

L. W. GITARI

JUDGE

Delivered in open Court, appellant present court assistant Naomi Murage this 15th day of November, 2017.

L. W. GITARI

JUDGE

15. 11. 2017