[2022] KEHC 890 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

CRIMINAL APPEAL NO. E002 OF 2022

CHRISPUS KARIUKI NDUNG’U........................................................................APPELLANT

-VERSUS-

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

RULING

1. The Applicant seeks to be released on bail/bond pending appeal.

2. The same is based on the grounds in application dated 9th February, 2022 and the same are:

i. That the Appellant was on the 26th January, 2022 sentenced to 5 years’ imprisonment for the offence of Grievous Harm contrary to Section 234 of the Penal Code.

ii.That the Appellant has appealed against the said judgment and his appeal has high chances of success.

iii. That the Appellant is the soul bread winner of his young family.

iv. That the Appellant is a 1st offender with no criminal records and is not a flight risk.

v. That the Appellant was released on a cash bail of Kshs.40,000/- in the Lower Court and he faithfully attended court until his conviction.

vi. That the Appellant is ready to abide to bond terms to be set by this Honorable Court pending appeal.

vii. That the Lower Court proceedings are yet to be supplied and the Appellant is likely to serve a full term of substantial part of it before appeal is heard and determined.

viii. That it would be fair if the orders sought are granted as it might take a lot of time before the appeal is admitted, heard and determined.

3. It is supported by affidavit of Chrispus Kariuki Ndung’u sworn on 9th February, 2022 which reiterates same grounds on the application.

4. The Respondent replied via submissions.

APPELLANT’S SUBMISSIONS:

5. The Appellant submits that he has met the threshold in his application for grant of orders sought. He relies on the case of John Kihonge Njeri v Republic [2020] Criminal Appeal No. 1 of 2019 in the High Court of Kenya at Nyahururu: which set out the principles to guide grant of bail pending appeal; namely;

i. Whether the appeal has high chances of success.

ii. Whether there is a possibility of delay in the determination of the appeal.

iii.Whether the Applicant is a first offender.

iv. Whether the Applicant complied with the bail conditions granted before the Applicant’s conviction during the pendency of the appeal.

6. He also relies on the case of case of Somo v Republic [1972] E.A. 476 which mainly dealt with the Applicant demonstrating the existence of overwhelming chances of success in the appeal.

7. He submits the several grounds set out in appeal are compelling enough to acquit and or set aside the sentence. He cites the case of Charles Owanga Aluoch v Republic Criminal Appeal No. 164 of 2013 in the High Court of Kenya at Nakuru.

8. The Appellant has submitted that there is a possibility of delay in the determination of the appeal as the proceedings are yet to be typed up to date. That will occasion further delay and the Appellant will have served a substantial part of his sentence before the appeal is heard. He relies on the case of Charles Owanga Aluoch v Republic Criminal Appeal No. 164 of 2013 in the High Court of Kenya at Nakuru (supra).

9. He submits that that the Applicant is a first offender and was on a cash bail of Kenya Forty Thousand (Kshs.40,000/-)in lower court and dutifully complied with bail terms.

10. The Applicant submits that he has a young wife with young children who were depending on him since the Applicant’s wife is a house wife who has no source of income. The Appellant is therefore not a flight risk.

11. The Appellant has satisfied the guidelines in allowing such an application for bond pending appeal.

RESPONDENT’S SUBMISSIONS:

12. The respondent submits that, it should not been lost on your Lordship, that an Appellant under sentence of imprisonment seeking bond lacks one of the elements normally available to an accused person.

a. Does the appeal have overwhelming chances of success?

13. The respondent submits that, bail and bond policy guidelines page 27 paragraph 4. 30 provides that the burden is on the convicted person to demonstrate that there is an overwhelming chances of success.

14. In this particular instance the record is not ready hence I cannot completely tell whether the appeal has overwhelming chances of success. A perusal of the judgment demonstrates that the trial Magistrate duly considered the law and evidence in arriving at a conclusion of convicting the Appellant.

15. It is contended that, the Appellant was sentenced to serve 5 years’ imprisonment on 26th January, 2022 hence there is no likelihood of him having served a substantial part to the sentence before the proceedings are typed and the appeal heard.

16. Furthermore, the, courts have currently up scaled work and the possibility of the appeal taking long to be heard should not arise.

17. Further it is contended that the Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. In Dominic Karanja v Republic [1986] KLR 612 it was held that the previous good character of the Applicant and hardships if any facing his family were not exceptional or unusual circumstances.

18. Similarly, in Peter Hinga Ngotho v Republic [2015] eKLR it was held that the fact that the Applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an Applicant to bail pending appeal.

19. In this case the issue of whether the Appellant is a first offender and whether the Appellant complied with the bail conditions granted before conviction, is not a condition for granting bond pending appeal as it does not constitute exceptional or unusual circumstance.

ISSUES, ANALYSIS AND DETERMINATION

20. After going through the pleading’s judgement and submissions on record, I find the issues are whether the appellant application has met the threshold for granting of bail pending appeal and if the above in positive, what are the conditions?

21. I have considered the pleadings and submissions by the Applicant and Prosecution. The provision of law that applies to bond/bail pending appeal isSection 357 of the Criminal Procedure Codewhich 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:

22. The principles for granting bond pending an appeal were reiterated in the case ofJivraj Shah v Republic (supra) 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 face 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.

(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.”

23. In the case ofChimambhai v Republic 1971 EA 343 J. Harris 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……..”

24. Under Article 49 of the Constitution of Kenya an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proved guilty, unlike a case where one is already convicted.

25. 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 grant of bail pending appeal.

26. In Dominic Karanja v Republic (1986) KLR 612, the Court of Appeal stated in alia:

“(a) The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances;

(b) The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners;

(c) A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal;

(d) …………..”

27. Having considered the above decisions, I must point out that grant of bail pending appeal is at the discretion of the court guided by the above principles and that the discretion must be exercised judicially.

28. In the Bond and Bail Policy guidelines correctly quoted by the prosecution, in such an application, the burden lies with the applicant to establish that the appeal has high chances of success or that he is likely to serve a substantial part of the sentence before the appeal is heard.

29. I have carefully examined the grounds of appeal raised by the applicant. The applicant states that appeal herein has a high probability of success and one need only look at the judgment and petition of appeal to see the shortfall of the trial in the lower court.

30. In this case, only the judgment of the trial court was availed to this court but the proceedings were not. The court has not had the benefit of perusing the said record to determine whether the grounds of appeal disclose an arguable appeal with high chances of success.

31. The Appellant was sentenced on 26/01/2022 to serve 5 years’ imprisonment hence there is no likelihood of him having served a substantial part of the sentence before the proceedings are typed and the appeal heard. Furthermore, the courts have currently adopted a policy of quick disposal of cases and the possibility of the appeal taking long to be heard does not arise.

32. On the aspect of demonstration of exceptional or unusual circumstances, court observes that, the Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal.

33. It is trite that Previous good character of the Applicant and the hardships if any facing his family were not exceptional or unusual circumstances. SeeDominic Karanja v Republic supra.

34. Further the fact that the Applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an Applicant to bail pending appeal. See Peter Hinga Ngotho v Republic supra.

35. In this case the issue of whether the Appellant is a first offender and whether the Appellant complied with the bail conditions granted before conviction, is not a condition for granting bond pending appeal as it does not constitute exceptional or unusual circumstance.

36. The court thus finds no merit in the instant application and makes the following order;

i. The application is dismissed.

ii.The appeal be fixed on priority basis.

DATEDAND SIGNED ATNYAHURURU THIS28THDAY OFMARCH, 2022.

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CHARLES KARIUKI

JUDGE