[2022] KEHC 13923 (KLR)

Chemjor v Republic (Criminal Appeal E041 of 2022) [2022] KEHC 13923 (KLR) (Crim) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13923 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E041 of 2022

JM Bwonwong'a, J

October 5, 2022

Between

Major Ben Kipkogei Chemjor

Appellant

and

Republic

Respondent

(Being an application for bail pending appeal in respect of the conviction and sentence of two years imprisonment imposed by the Court Martial (Col. E.W. Ndegwa, Lt. Col. E.O. Okello, M.M. Saha, Capt. P.W. Mbugua, Capt. V.N. Mikya and Lt. F.F. Safari) on 10th March 2022 at Kahawa Garrison, Court Martial Case No. 12 of 2021, Republic vs Major Ben Kipkogei Chemjor)

Ruling

1. The appellant was charged with the offence of committing a civil offence contrary to section 133 (1) (b) of the Kenya Defence Forces Act, in counts one and two, and in count three he was charged with conduct to the prejudice of good order and service discipline contrary to section 121 of the Kenya Defence Forces Act.He was found guilty and convicted in all the three counts.

2. He was sentenced to serve one-year imprisonment in counts one and two and two-years imprisonment in count three. The court ordered all the sentences to run concurrently.

3. Being dissatisfied with the judgement, he filed a petition of appeal dated March 25, 2022 in this court.

4. Simultaneously, he filed an application seeking his release on reasonable bail and/or bond pending the hearing and determination of his appeal. He also sought the costs of this application. The application is premised on the following grounds. That the appeal has overwhelming chances of success. The appellant is a law-abiding citizen, and prior to his conviction he served as a major in the Kenya Defence Forces in the school of infantry. Further that he will abide by all the conditions that the court may impose.

5. Additionally, he is apprehensive that unless granted bail he will have served a substantial term of his sentence and will be prejudiced when the court ultimately upholds his appeal. He also stated that he has suffered from an on and off peptic ulceration, musculoskeletal disorder, and hypertension, a condition that persists and needs constant management. The condition has subjected him to great difficulties and continues affecting his day-to-day operations. He prays for bail to enable him to present his appeal in a sober and settled state of mind which cannot be achieved while he is incarcerated.

The Appellant’s Written Submissions 6. Mr Gordon Ogola, learned counsel for the appellant submitted that section 357 (1) of the Criminal Procedure Code (cap 75) Laws of Kenya, provides for the grant of bail pending appeal. He asserted that the application before this court is not only merited but also premised on substantive law. Further, at this interlocutory stage, the court is not obligated to look into all the evidence and even consider all the matters of law and/or merits or otherwise of the appeal as it pronounces itself on the application.

7. Learned counsel submitted that the principles applicable in considering the of grant of bail pending appeal are laid down in the case of Jivraj Shah v Republic [1986] KLR 605. Consequently, the court ought to exercise judicial discretion due to the overwhelming circumstances of the case.

8. In addition, the appellant was sentenced to serve a cumulative sentence of two years which after remission is likely to go below 12 months. Therefore, the apprehension that he will have served a substantial part of the sentence is pegged on a proper basis.

9. On the merits of the appeal, learned counsel submitted that the court martial made a determination relying on the electronic evidence without deciding whether or not the said evidence was admissible. Further, the trial court grossly failed to properly evaluate the identification evidence of the subscribers presented. That the court arrived at a conviction against the appellant with such missing links, hence the appeal has high chances of success.

The Respondent’s Written Submissions 10. Ms Joyce Adhiambo, learned counsel for the respondent submitted that the appellant has not demonstrated any exceptional circumstances to be granted bail pending appeal. Secondly, on whether the appeal has high chances of success, learned counsel submitted that the nature of the offence committed and the weight of evidence adduced will require a thorough evaluation in order to make a concrete decision.

11. Finally, learned counsel submitted that there would be no inordinate delay in hearing the appeal as the court is currently handling 2021 matters. The appellant's appeal will be therefore expedited and heard and determined within a reasonable time.

12. Counsel submitted that the appellant has not met the threshold to be released on bail pending appeal.

Issues for Determination 13. Whether the appellant has met the threshold for the grant of bail pending the determination of his appeal.

Analysis and Determination 14. I have considered submissions of the appellant and the respondent in the light of the applicable law. The provisions of the law that govern the grant or refusal of bond/bail pending appeal is section 357 of the Criminal Procedure Code (cap 75) Laws of Kenya, which provides as follows:(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:

15. The principles for granting bail pending an appeal were reiterated in the case of Jivraj Shah v Republic [1986] KLR 605, which laid down the principles as follows:“(1)The principal consideration in an application for bond 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.(2)If it appears prima faciefrom 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.(3)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 weight and relevance of the points to be argued.”

16. In the case of Chimambhai v Republic (1971) EA 343, Harris, J made another observation in such an application when he said;“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……..”

17. Under article 49 of the Constitution of Kenya an accused person who is facing a criminal charge has a right to bail/bond because he is presumed to be innocent till proved guilty, unlike a case where one is already convicted. In the above cases, the courts also held that anticipated delay in the hearing of the appeal, together with other factors may be grounds for the grant of bail pending appeal.

18. I have carefully examined the grounds of appeal raised by the applicant. The applicant states that appeal herein has a high chance of success and one need only look at the judgment and petition of appeal to see the trial court relied on inadmissible evidence and there were glaring inconsistencies which is a hallmark of a successful appeal.

19. Furthermore, the principles to be followed in matters of bail pending appeal were also set out in Somo v R[1972] EA 472 at page 480 as follows:“There is little if any point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the appeal court. I have used the word “overwhelming” deliberately for what I believe to be good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is overwhelming probability that it will succeed.”

20. In this application, I have considered the eleven grounds of appeal raised in the petition of appeal. However, I am not satisfied that the said grounds disclose the existence of an appeal with overwhelming chances of success. Whereas the appellant may succeed in arguing the said grounds at the hearing of the appeal, I am not satisfied that the chances of the appeal succeeding are overwhelming.

21. As regards exceptional circumstances, it is argued that the appellant’s appeal is likely to be determined after a substantial part of the sentence will have been served. The appellant was sentenced to a cumulative of two years imprisonment. The appellant’s apprehension, as I understood it, is that the appeal will take long to be heard. However, I find that this appeal may be heard and determined during this term because the record of appeal is ready.

22. The appellant also claimed to be suffering from an on-and-off case of peptic ulceration, musculoskeletal disorder and hypertension, a condition that needs constant management. From the records, the condition was being managed at the detention facility. That being the case, he can continue receiving treatment in the same facility or any other medical facility to which he may be referred by the prison authorities.

23. The upshot of the above analysis is that the applicant has not demonstrated the existence of exceptional or unusual circumstances or overwhelming chances of success to warrant the grant of bail pending appeal.

24. The application for bail pending appeal fails and is hereby dismissed.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr Ogola for the appellant/applicantMs Joy Adhiambo for the Respondent