[2017] KEHC 2411 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT ELDORET

CRIMINAL APPEAL NO. 172 OF 2015

CHRISTOPHER KIPROTICH MUTAI ………...........………… APPELLANT

VERSUS

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

RULING

1. The appellant Christopher Kiprotich Mutai was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. He was sentenced to fifteen years imprisonment.

2. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 14th December, 2015. While awaiting the hearing of his appeal, through his advocates Ms Rotok & Company Advocates, the appellant presented a Notice of Motion dated 5th May, 2017 seeking that he be admitted to bond pending the hearing and determination of his appeal.

3. In the grounds supporting the motion which are largely reproduced in the deposition dated 10th May, 2017, the appellant contends that the appeal has high chances of success as in his view, he was falsely accused of the offence; that he has a young family and he is its sole bread winner; that he has a fixed abode and is not a flight risk; that he will not abscond if granted bond pending appeal just like he did not abscond the trial in the lower court; and finally, that he was ready to abide by any conditions set by the court to the grant of bond.

4. At the hearing, the appellant was represented by learned counsel Mr. Bittock while learned prosecuting counsel Ms. Kainga appeared for the state. In his submissions, Mr. Bittok re-iterated the grounds anchoring the motion. He in addition claimed that the appellant has a constitutional right to be admitted to bond pending appeal. To demonstrate that the appeal has high chances of success, counsel invited the court to note that the trial was conducted by four magistrates and three of them did not comply with the provisions of Section 200 (3) of the Criminal Procedure Code (CPC); that the magistrate who convicted the appellant never heard the benefit of interrogating the complainant who was the prosecution’s main witness.

5. On her part, Ms Kainga opposed the motion. She averred that the appeal does not have any chance of success; that the appellant’s guilt had been proved beyond any reasonable doubt and that he had not demonstrated any exceptional circumstances to warrant his admission to bond pending appeal; that the appellant, now a convict does not have a constitutional right to bond. On the strength of those submissions, Ms. Kainga implored me to dismiss the application for lack of merit.

6. I have carefully considered the application; the evidence presented before the trial court and the rival submissions made on behalf of the appellant and the state. I have also read the judgment of the learned trial magistrate.

7. I wish to point out at the outset that this court under Section 357 of the Criminal Code has wide discretion in deciding whether or not to grant an appellant bond pending appeal. The discretion must however be exercised judiciously in accordance with the law taking into account the facts and circumstances of each case.

8. The legal parameters for determination of applications of this nature are well settled. There are two main principles which guide the court in the exercise of its discretion under Section 357 of the CPC. These are whether the appellant has demonstrated that his or her appeal has overwhelming chances of success and whether any exceptional or unusual circumstances exist to entitle an appellant to bond pending appeal – See; Dominic Karanja V Republic (1986) KLR 612; Jivraj Shah V Republic (1986) KLR 605.

9. Before I consider whether or not the appellant has satisfied any of the above requirements, I wish to deal first with the claim that the appellant has a constitutional right to bond pending appeal.

10. In my understanding, the only provision in the Constitution which deals with the right to bond is Article 49 of the Constitution. The relevant provisions in Article 49 (1)states as follows;-

“An arrested person has the right -

(a) …………………

(b) …………………

(h) To be released on bond or bail, on reasonable conditions, pending a charge or trial unless there are compelling reasons no to be released”.

11. As I have previously held in Charles Mukabi V Republic HCRA (ELD) No. 48 of 2016; Joseph Garang Korir V Republic HCRA (ELD) No. 129 of 2010 and Mark Gumba V Republic HCRA (ELD) No. 132 of 2016,Article 49 (i) (h)only guarantees the right to bail or bond to arrested persons who are either waiting to be charged with a criminal offence or those who have already been charged and are awaiting trial. It does not apply to convicted persons. It does not therefore grant appellants a right to bond or bail pending appeal. Consequently, the appellant’s contention that he is constitutionally entitled to bond pending the conclusion of his appeal is misconceived and cannot be sustained.

12. Having said that, I now wish to turn to a consideration of whether the appellant has demonstrated that his appeal has high chances of success or that an exceptional circumstance exists to justify the grant of the orders sought.

13. I have considered the appellant’s argument that his appeal has high chances of success as three of the magistrates who conducted his trial did not comply with the provisions of Section 200 (3) of the CPC.

14. My reading of the proceedings in the lower court reveals that the trial was conducted by three and not four magistrates as alleged by learned counsel Mr. Bittok. The court record shows that the trial opened before Hon. G. Mutiso (RM) and was subsequently taken over by Hon. R. Koech (SRM) and Hon G. Adhimabo (SRM) who concluded the case by convicting and sentencing the appellant. The record also reveals that when each of the succeeding magistrates was taking over the proceedings, the appellant made an election that he wanted the case to continue from where the previous magistrate had stopped. Without making any finding, it would appear from this election that the appellant was either notified or was aware of his rights under Section 200 (3) of the C.P.C.

15. But whether or not there was compliance with the above provision in the lower court is not an issue for consideration in this appeal given that there is no complaint in the appellant’s petition of appeal that the magistrates who conducted the trial erred in not complying with Section 200 (3) of the CPC. The alleged non-compliance with the provision only came up in the submissions made by Mr. Bittok.

16. In the circumstances and given the provisions of Section 350 (2) of the Criminal Procedure Code which prohibits an appellant from relying on grounds of appeal other than those raised in the petition of appeal, the appellant’s proposition that his appeal has overwhelming or high chances of success owing to the alleged non- compliance of the aforesaid provision of the law falls flat on its face.

17. Though it may well be true that the appellant has a young family for whom he is the sole breadwinner, this in itself is not an exceptional circumstance. Equally, the fact that he has pledged not to abscond and that he was out on bond during the trial and never absconded does not aid him in this application as none of these is a sufficient ground for the grant of bond pending appeal – See; Dominic Karanja V Republic Supra.

Besides, the appellant is now a convict and the presumption of innocence no longer holds true.

18. In view of the foregoing, I have come to the conclusion that though the appellant’s appeal is arguable, it is not one which has overwhelming chances of success. I am not also satisfied that any exceptional or unusual circumstances have been shown to exist in this case that would entitle the appellant to grant of bond pending appeal.

19. In the result, it is my finding that the application dated 5th May, 2017 is devoid of merit and it is accordingly dismissed.

It is so ordered.

C. W. GITHUA

JUDGE

DATED, SIGNEDandDELIVEREDatELDORETthis 11th day of October, 2017

In the presence of:-

Appellant

Miss Rakama for the state

Mr. C.F Otieno holding brief for Mr. Bittok for the applicant

Sarah - Court clerk